resent  day 
Problems 


■ 


JL  JL  •     JL   xVl      A 


PRESENT    DAY    PROBLEMS 


Copyright  by  Moffett  Studio,  Chicago. 


PRESENT   DAY    PROBLEMS 

A   COLLECTION   OF   ADDRESSES 

DELIVERED    ON    VARIOUS 

OCCASIONS 

BY 
WILLIAM    H.    TAFT 


NEW  YORK 

DODD,  MEAD  &  COMPANY 

1908 


Copyright,  1908,  by 

William   H.   Taft 
Published,  June,  1908 


THE   QUINN    &   BODEN    CO.    PRESS 
RAHWAY,    N.    J. 


T  I  & 

CONTENTS 

PAGE 

Inaugural  Address  as  Civil  Governor  of  the 

Philippines  ......  1 

The    Inauguration    of    the    Philippine    As- 
2jj  sembly  .  .  .  .  .  .11 

PS 

CQ  China  and  Her  Relations  with  the  United 

States  ......        43 

Japan  and  Her  Relations  with  the  United 

States  .  .  .  .  .54 

co  An  Appreciation  of  General  Grant       .  .        60 

The  Army  of  the  United  States  ...        76 

50  The  Panama  Canal     .....        95 

3  A  Republican  Congress  and  Administration, 

and  Their  Work  from  1904  to  1906        .      123 
The    Legislative    Policies    of    the    Present 

Administration      .....      155 

g    The  Panic  of  1907 206 

£§  Southern  Democracy  and  Republican  Prin- 

82  CIPLES 221 

Labor  and  Capital       .....  241 

The  Achievements  of  the  Republican  Party  273 

Recent  Criticism  of  the  Federal  Judiciary  290 

Administration  of  Criminal  Law  .  .  .  333 


Digitized  by  the  Internet  Archive 
in  2013 


http://archive.org/details/presentdayprobleOOwill_0 


INAUGURAL  ADDRESS  AS   CIVIL  GOVERNOR 
OF  THE  PHILIPPINES 

MANILA,  PHILIPPINE  ISLANDS,  JULY   4,  1901 

My  Fellow-Countrymen  :  This  ceremony  marks  a  new 
step  toward  civil  government  in  the  Philippine  Islands. 
The  ultimate  and  most  important  step,  of  course,  will 
be  taken  by  the  Congress  of  the  United  States,  but  with 
the  consent  of  the  Congress  the  President  is  seeking  to 
make  the  Islands  ready  for  its  action.  However  pro- 
visional the  change  made  to-day,  the  President  by  fix- 
ing the  natal  day  of  the  Republic  as  its  date  has  mani- 
fested his  view  of  its  importance  and  his  hope  that  the 
day  so  dear  to  Americans  may  perhaps  be  also  asso- 
ciated in  the  minds  of  the  Filipino  people  with  good 
fortune.  The  transfer  to  the  Commission  of  the  legis- 
lative power  and  certain  executive  functions  in  civil 
affairs  under  the  military  government  on  September 
first  of  last  year,  and  now  the  transfer  of  civil  execu- 
tive power  in  the  pacified  provinces  to  a  civil  governor, 
are  successive  stages  in  a  clearly  formulated  plan  for 
making  the  territory  of  these  Islands  ripe  for  perma- 
nent civil  government  on  a  more  or  less  popular  basis. 
As  a  further  step  in  the  same  direction,  on  September 
first  next,  at  the  beginning  of  the  Commission's  second 
legislative  year,  there  will  be  added  as  members  to  that 
body  by  appointment  of  the  President,  Dr.  Trinidad 
H.  Pardo  de  Tavera,  Senor  Don  Benito  Legarda  and 
Senor  Don  Jose  Luzuriaga.  The  introduction  into  the 
legislature  of  representative  Filipinos,  educated  and 
able,  will  materially  assist  the  Commission  in  its  work 
by  their  intimate  knowledge  of  the  people  and  of  local 


2  INAUGURAL  ADDRESS  AS 

prejudices  and  conditions.  On  September  first,  also, 
the  executive  branch  of  the  insular  government  will  be 
rendered  more  efficient  by  the  establishment  of  four 
executive  departments.  There  will  be  a  department  of 
the  interior,  of  which  Commissioner  Dean  C.  Worcester 
will  be  head ;  a  department  of  commerce  and  police,  of 
which  Commissioner  Luke  E.  Wright  will  be  the  head;  a 
department  of  justice  and  finance,  of  which  Commis- 
sioner Henry  C.  Ide  will  be  the  head,  and  a  department 
of  public  instruction,  of  which  Commissioner  Bernard 
Moses  will  be  the  head.  The  foregoing  announcements 
are  made  by  direction  of  the  Secretary  of  War. 

Since  the  above  was  written,  in  confirmation  of  the 
statement  of  the  President's  purposes  with  respect  to 
the  people  of  these  Islands,  I  have  this  morning  re- 
ceived the  following  telegram  from  the  President  of  the 
United  States: 

Washington,  July  3 — 3.45  p.  m. 
Taft,  Manila: 

Upon  the  assumption  of  your  new  duties  as  civil  governor 
of  the  Philippine  Islands  I  have  great  pleasure  in  sending 
congratulations  to  you  and  your  associate  commissioners 
and  my  thanks  for  the  good  work  already  accomplished.  I 
extend  to  you  my  full  confidence  and  best  wishes  for  still 
greater  success  in  the  larger  responsibilities  now  devolved 
upon  you,  and  the  assurance  not  only  for  myself  but  for  my 
countrymen  of  good  will  for  the  people  of  the  Islands,  and 
the  hope  that  their  participation  in  the  government  which  it 
is  our  purpose  to  develop  among  them,  may  lead  to  their 
highest  advancement,  happiness    and  prosperity. 

William  McKinley. 

The  extent  of  the  work  which  the  Commission  has 
done  in  organizing  civil  governments  in  towns  and 
provinces  is  considerable,  but  its  scope  and  effect  may 
easily  be  exaggerated  by  those  not  fully  acquainted 


CIVIL  GOVERNOR  OF  THE  PHILIPPINES       3 

with  the  situation.  Twenty-seven  provinces  have  been 
organized  under  the  general  provincial  act;  but  it  has 
not  been  possible  to  fill  the  important  office  of  super- 
visor in  eight  or  nine  of  them  because  a  supervisor  must 
be  a  civil  engineer.  We  have  sent  to  America  for  com- 
petent persons,  whose  arrival  we  look  for  this  month.  As 
the  supervisor  is  one  of  the  three  members  of  the  govern- 
ing provincial  board,  his  absence  necessarily  cripples 
the  administration.  Of  the  twenty-seven  provinces  or- 
ganized, four,  possibly  five  and  small  parts  of  two 
others  in  which  armed  insurrection  continues,  will  re- 
main under  the  executive  jurisdiction  of  the  military 
governor  and  commanding  general.  There  are  sixteen 
provinces  or  districts  in  which  there  is  entire  freedom 
from  insurrection  which  the  Commission  has  not  had 
time  to  organize.  Of  the  unorganized  provinces  and 
districts,  including  Mindoro  and  Paragua,  the  latter 
just  occupied  by  the  army,  there  are  four  that  are  not 
ready  for  civil  government.  In  the  organized  provinces 
nearly  all  the  towns  have  been  organized  under  the  muni- 
cipal code;  and  some  towns  have  been  similarly  organ- 
ized in  unorganized  provinces.  It  was  not  supposed 
that  either  the  municipal  code  or  the  provincial  govern- 
ment act  would  form  perfect  governments,  though  it 
was  possible  to  make  the  former  much  more  complete 
than  the  latter,  for  there  had  been  two  experiments  in 
municipal  government  under  the  administration  of  Gen- 
eral Otis  and  General  McArthur  before  the  Commission 
began  its  legislative  work.  The  provincial  government 
act  was  tentative.  The  result  of  the  southern  trip  of 
the  Commission  was  a  substantial  amendment  and  there 
will  doubtless  be  others.  Government  is  a  practical, 
not  a  theoretical,  problem  and  the  successful  applica- 
tion of  a  new  system  to   a  people  like  this  must  be 


4  INAUGURAL  ADDRESS  AS 

brought  about  by  observing  closely  the  operation  of 
simple  laws  and  making  changes  or  additions  as  experi- 
ence shows  their  necessity.  The  enactment  of  the  law 
in  its  first  form  and  appointments  under  it  are  but  one 
of  several  steps  in  a  successful  organization. 

The  conditions  under  which  the  municipal  and  pro- 
vincial governments  of  the  Islands  are  to  have  their  first 
real  test  are  trying.  The  four  years'  war  has  pauper- 
ized many,  and  its  indirect  effect  in  destroying  the 
habits  of  industry  of  those  who  have  been  prevented 
from  working  in  the  fields,  or  who  have  been  leading  the 
irresponsible  life  of  guerrillas,  is  even  more  disastrous. 
Not  only  war,  but  also  the  death  from  disease  of  a  large 
percentage  of  the  carabaos  which  are  indispensable  to 
the  cultivation  of  rice  and  are  greatly  needed  in  all 
agriculture,  has  largely  reduced  the  acreage  of  rice  and 
other  staple  products.  Then  the  pest  of  locusts  has 
been  very  severe.  In  one  province,  and  perhaps  more, 
gaunt  famine  may  have  to  be  reckoned  with.  Poverty 
and  suffering  in  a  country  where  ladronism  has  always 
existed  are  sure  to  make  ladrones. 

With  the  change  made  to-day,  the  civil  governments 
must  prepare  to  stand  alone  and  not  depend  on  the 
army  to  police  the  provinces  and  towns.  The  concen- 
tration of  the  army  in  larger  garrisons  where,  in  cases 
of  emergency  only,  they  can  be  called  on  to  assist  the 
local  police  may  be  expected;  but  the  people  must  be 
enabled  by  organization  of  native  police  under  proper 
and  reliable  commanders  to  defend  themselves  against 
the  turbulent  and  vicious  of  their  own  communities. 
^  The  withdrawal  of  the  army  from  the  discharge  of 
quasi-civil  duties  of  police  will  be  accompanied  also  by 
the  ceasing  of  the  jurisdiction  of  military  commissions 
to  try  ordinary  criminal  cases.     They  have  been  most 


CIVIL  GOVERNOR  OF  THE  PHILIPPINES       5 

useful  in  punishing  and  repressing  crime.  We  have  en- 
acted a  judiciary  law  and  appointed  judges  under  it  who 
will  succeed  to  this  work.  But  the  adoption  of  a  new  civil 
code  of  procedure,  a  new  criminal  code  and  code  of  pro- 
cedure, all  of  which  are  ready,  may  be  delayed  somewhat 
by  the  needed  public  discussion  of  them.  Until  they 
are  all  ajdopted,  we  shall  not  feel  that  the  chief  step  has 
been  taken  toward  securing  the  blessings  of  civil  liberty 
to  the  people  of  the  pacified  provinces,  the  protection  of 
life,  liberty  and  property. 

The  difficulties  of  official  communication  between 
provinces  on  the  sea  and  between  towns  of  the  same 
province  similarly  situated  must  be  met  by  a  properly 
organized  fleet  of  small  steamers  or  launches  which  shall, 
at  the  same  time,  assist  in  the  revenue  or  postal  service. 
Provincial  governments,  in  many  cases,  without  such 
means  of  communicating  with  their  numerous  towns,  are 
greatly  impeded  in  their  functions. 

Congress,  in  its  wisdom,  has  delayed  until  its  next 
session  provision  for  the  sale  of  public  lands,  of  mining 
rights  and  the  granting  of  franchises.  All  are  neces- 
sary to  give  the  country  the  benefit  of  American  and 
foreign  enterprise  and  the  opportunity  of  lucrative 
labor  to  the  people.  Commercial  railroads,  street  rail- 
roads, mortgage-loan  companies  or  land  banks  and 
steamship  companies  only  await  Government  sanction 
to  spring  into  being.  These  may  remedy  the  poverty 
and  suffering  that  a  patient  people  have  now  to  bear. 

The  school  system  is  hardly  begun  as  an  organized 
machine.  One  thousand  American  teachers  will  arrive 
in  the  next  three  months.  They  must  not  only  teach 
English  in  the  schools,  but  they  must  teach  the  Filipino 
teachers.  Schoolhouses  are  yet  to  be  built ;  schoolrooms 
are  yet  to  be  equipped.     Our  most  satisfactory  ground 


6  INAUGURAL  ADDRESS  AS 

for  hope  of  success  in  our  whole  work  is  in  the  eagerness 
with  which  the  Philippine  people,  even  the  humblest, 
seek  for  education. 

Then  there  is  another  kind  of  education  of  adults  to 
which  we  look  with  confidence.  It  is  that  which  comes 
from  observation  of  the  methods  by  which  Americans  in 
office  discharge  their  duties.  Upon  Americans  who  ac- 
cept office  under  the  civil  government  is  imposed  the  re- 
sponsibility of  reaching  the  highest  American  standard 
of  official  duty.  Whenever  an  American  fails ;  whenever 
he  allows  himself  to  use  his  official  position  for  private 
ends,  even  though  it  does  not  involve  actual  defalcation 
or  the  stealing  of  public  property  or  money,  he  is  recre- 
ant to  his  trust  in  a  far  higher  degree  than  he  would  be 
were  he  to  commit  the  same  offense  in  a  similar  office  at 
home.  Here  he  is  the  representative  of  the  great  Re- 
public among  a  people  untutored  in  the  methods  of  free 
and  honest  government,  and  in  so  far  as  he  fails  in  his 
duty,  he  vindicates  the  objection  of  those  who  have 
forcibly  resisted  our  taking  control  of  these  Islands 
and  weakens  the  claim  we  make  that  we  are  here  to 
secure  good  government  for  the  Philippines. 

The  operation  of  the  civil-service  Act  and  the  rules 
adopted  for  its  enforcement  have  been  the  subject  of 
some  criticism;  but  I  think  that  when  they  are  fully 
understood,  and  when  the  Filipino,  in  seeking  a  position 
in  executive  offices  where  English  is  the  only  language 
spoken,  fits  himself,  as  he  will  with  his  aptness  for  learn- 
ing languages,  in  English,  he  will  have  nothing  to  com- 
plain of  either  in  the  justice  of  the  examination  and  its 
marking  or  in  the  equality  of  salaries  between  him  and 
Americans  doing  the  same  work.  The  civil-service  Act 
is  the  bulwark  of  honesty  and  efficiency  in  the  govern- 
ment.    It   avoids  the  most   marked  evil  of  American 


CIVIL  GOVERNOR  OF  THE  PHILIPPINES       7 

politics,  the  spoils  system.  Without  it  success  in 
solving  our  problem  would  be  entirely  impossible.  Com- 
plaints of  its  severity  and  its  unfortunate  operation  in 
individual  instances  may  give  plausibility  to  attack 
upon  it,  but  those  who  are  responsible  for  appointments 
can  not  be  blinded  to  the  fact  that  its  preservation  is 
absolutely  essential  to  the  welfare  of  these  Islands. 

If  I  have  understood  the  decision  of  the  Supreme 
Court  in  the  recent  so-called  Porto  Rico  cases,  the  ques- 
tion of  what  duties  shall  be  levied  on  imports  into  these 
Islands  from  the  United  States  and  on  exports  from 
these  Islands  into  the  United  States  is  committed  to 
the  discretion  of  Congress.  Without  assuming  to  ex- 
press an  opinion  on  the  much-mooted  issue  of  constitu- 
tional law  involved,  I  venture  to  say  that  the  result 
is  most  beneficial  to  the  people  of  these  Islands.  It 
seems  to  me  that  a  decision  that  the  same  tariff  was  in 
force  in  these  Islands  as  in  the  United  States,  and  must 
always  be  so,  would  have  been  detrimental  to  the  inter- 
ests of  the  Islands.  They  are  7,000  miles  from  the 
coast  of  the  United  States.  The  conditions  prevailing 
in  them  are  as  different  as  possible  from  those  in  the 
United  States.  The  application  to  them  of  a  high  pro- 
tective tariff  carefully  prepared  to  meet  trade  and  the 
manufacturing  conditions  in  the  United  States  would 
have  been  a  great  hardship.  It  is  true  that  to  sugar 
and  tobacco  planters  would  have  been  opened  a  fine  mar- 
ket, but  it  would  have  greatly  reduced  all  trade  between 
the  Philippines  and  China  and  other  Oriental  countries 
and  all  European  countries,  and  it  would  have  neces- 
sitated a  heavy  internal  tax  to  pay  the  expenses  of  the 
central  government.  Now  the  people  may  reasonably 
entertain  the  hope  that  Congress  will  give  them  a  tariff 
here  suited  to  the  best  development  of  business  in  the 


8  INAUGURAL  ADDRESS  AS 

Islands,  and  may  infer  from  the  liberal  treatment  ac- 
corded in  its  legislation  to  Porto  Bican  products  im- 
ported into  the  United  States  that  Philippine  products 
will  have  equally  favorable  consideration. 

The  finances  of  the  insular  government  are  at  present 
in  a  satisfactory  condition,  though  changes  in  laws 
made  or  about  to  be  made  may  affect  them  considerably. 
There  is  now  in  the  insular  treasury  a  sum  of  money 
exceeding  $3,700,000  in  gold  unappropriated.  The 
engineers  in  the  Manila  harbor  work  have  been  au- 
thorized to  make  contracts  involving  a  liability  of 
$2,000,000  beyond  the  $1,000,000  already  appro- 
priated, but  this  is  the  only  liability  of  the  gov- 
ernment and  it  will  not  accrue  for  two  years  at 
least.  The  insular  income,  which  is  now  about  $10,- 
000,000,  gold,  a  year,  is  likely  to  be  reduced  more  than 
$1,000,000  by  the  provision  of  the  provincial  act  which 
applies  the  proceeds  of  the  internal-revenue  taxes  to  the 
support  of  the  provincial  governments.  Moreover,  a 
new  customs  tariff  is  soon  to  be  put  in  force,  the  imme- 
diate result  of  which  may  be  to  reduce  the  total  amount 
of  duties  collected.  It  reduces  the  import  tax  on  neces- 
sities and  increases  it  on  luxuries  and  roughly  approxi- 
mates, as  nearly  as  a  tariff  of  specific  duties  can,  to  a 
purely  revenue  tariff  of  25  per  cent,  ad  valorem.  In 
addition  to  this,  the  cost  of  the  insular  government  is 
bound  to  increase  as  the  establishment  of  peace  and  civil 
government  is  extended  through  the  Archipelago  and  the 
skeleton  bureaus  and  departments  now  recognized  in  the 
law  are  enlarged  and  given  a  normal  usefulness.  Still 
the  increase  of  business  due  to  returning  peace  and 
prosperity  will  doubtless  keep  pace  with  the  needs  of  the 
government. 

The  conduct  of  the  civil  and  military  branches  of  a 


CIVIL  GOVERNOR  OF  THE  PHILIPPINES       9 

military  government  under  independent  hands  is  neces- 
sarily a  delicate  matter.  It  depends,  as  the  President 
in  his  instructions  says,  upon  the  fullest  cooperation 
between  the  military  and  the  civil  arms,  and  I  am  glad 
to  be  able  to  say  that  I  believe  that  there  will  be  the  same 
cooperation  in  the  future  as  there  has  been  in  the  past ; 
that  the  possible  friction  which  may  arise  between  the 
subordinates  of  the  respective  arms  will  have  no  encour- 
agement from  those  in  whom  is  the  ultimate  responsi- 
bility. There  is  work  enough  and  to  spare  for  all  who 
are  concerned  in  the  regeneration  of  these  Islands. 

The  burden  of  the  responsibility  which,  by  taking  the 
oath  this  day  administered  to  me,  I  assume,  I  shall  not 
dwell  upon,  except  to  say  that  no  one,  I  think,  realizes 
it  more  keenly  than  I  do.  While  I  am  profoundly 
grateful  to  the  President  of  the  United  States  for  the 
personal  trust  he  has  expressed  in  appointing  me  to  this 
high  office,  it  is  with  no  exultant  spirit  of  confidence  that 
I  take  up  the  new  duties  and  new  task  assigned  to  me. 
I  must  rely,  as  I  do,  upon  the  cooperation,  energy, 
ability  and  fidelity  to  their  trust  of  those  with  whom 
I  am  to  share  the  responsibility  now  to  be  presented, 
upon  the  sympathetic  and  patriotic  patience  of  those 
educated  Filipino  people  who  have  already  rendered  us 
such  tremendous  aid,  and  upon  the  consciousness  that 
earnest  effort  and  honest  purpose,  with  a  saving  of 
common  sense,  have  in  the  past  solved  problems  as  new, 
as  threatening  and  as  difficult  as  the  one  before  us. 

The  high  and  sacred  obligation  to  give  protection  for 
property  and  life,  civil  and  religious  freedom  and  wise 
and  unselfish  guidance  in  the  paths  of  peace  and  pros- 
perity to  all  the  people  of  the  Philippine  Islands  is 
charged  upon  us,  his  representatives,  by  the  President 
of  the  United  States.     May  we  not  be  recreant  to  this 


10  INAUGURAL  ADDRESS  AS  CIVIL  GOVERNOR 

charge  which,  he  truly  says,  concerns  the  honor  and  con- 
science of  our  country.  He  expresses  the  firm  hope  that 
through  our  "  labors  all  the  inhabitants  of  the  Philip- 
pine Islands  may  come  to  look  back  with  gratitude  to 
the  day  when  God  gave  victory  to  American  arms  at 
Manila  and  set  their  land  under  the  sovereignty  and 
protection  of  the  people  of  the  United  States."  God 
grant  that  in  spite  of  all  the  trials  and  perplexities,  the 
disappointments  and  difficulties,  with  which  we  are  sure 
to  be  confronted,  we  may  live  to  see  this  fervent  hope 
made  a  living  fact  in  the  hearts  of  a  patriotic  people 
linked  within  the  indissoluble  ties  of  affection  to  our 
common  and  beloved  country. 


13 


THE  INAUGURATION  OF  THE  PHILIPPINE 
ASSEMBLY 

MANILA,  PHILIPPINE  ISLANDS,  OCTOBER  16,  1907 

Gentlemen  of  the  Assembly  :  President  Roosevelt  has 
sent  me  to  convey  to  you  and  the  Filipino  people  his 
congratulations  upon  another  step  in  the  enlargement 
of  popular  self-government  in  these  Islands.  I  have 
the  greatest  personal  pleasure  in  being  the  bearer  of  this 
message.  It  is  intended  for  each  and  every  member  of 
the  Assembly,  no  matter  what  his  views  upon  the  issues 
which  were  presented  in  the  late  electoral  campaign.  It 
assumes  that  he  is  loyal  to  the  government  in  which  he 
now  proposes,  under  oath  of  allegiance,  to  take  part.  It 
does  not  assume  that  he  may  not  have  a  wish  to  bring 
about,  either  soon  or  in  the  far  future,  by  peaceable 
means,  a  transfer  of  sovereignty;  but  it  does  assume 
that  while  the  present  government  endures,  he  will 
loyally  do  all  he  lawfully  can  to  uphold  its  authority  and 
to  make  it  useful  to  the  Filipino  people. 

I  am  aware  that,  in  view  of  the  issues  discussed  at  the 
election  of  this  Assembly,  I  am  expected  to  say  some- 
thing regarding  the  policy  of  the  United  States  to- 
ward these  Islands.  Before  attempting  any  such  task, 
it  is  well  to  make  clear  the  fact  that  I  can  not  speak 
with  the  authority  of  one  who  may  control  that  policy. 

The  Philippine  Islands  are  territory  belonging  to  the 
United  States,  and  by  the  Constitution,  the  branch  of 
that  Government  vested  with  the  power,  and  charged 
with  the  duty,  of  making  rules  and  regulations  for  their 
government  is  Congress.  The  policy  to  be  pursued  with 
respect  to  them  is,  therefore,  ultimately  for  Congress  to 

11 


0  7  THE  INAUGURATION  OF 

determine.  Of  course,  in  the  act  establishing  a  govern- 
ment for  the  Philippine  Islands  passed  by  Congress  July 
1,  1902,  wide  discretion  has  been  vested  in  the  Presi- 
dent to  shape  affairs  in  the  Islands,  within  the  limita- 
tions of  the  act,  through  the  appointment  of  the  Gov- 
ernor and  the  Commission,  and  the  power  of  the  Secre- 
tary of  War  to  supervise  their  work  and  to  veto  proposed 
legislation;  but  not  only  is  the  transfer  of  sovereignty 
to  an  independent  government  of  the  Filipino  people 
wholly  within  the  jurisdiction  of  Congress,  but  so  also 
is  the  extension  of  any  popular  political  control  in  the 
present  government  beyond  that  conferred  in  the  or- 
ganic act.    It  is  embarrassing,  therefore,  for  me,  though 

1  am  charged  with  direct  supervision  of  the  Islands  un- 
der the  President,  to  deal  in  any  way  with  issues  relating 
to  their  ultimate  disposition.  It  is  true  that  the  peculiar 
development  of  the  government  of  the  Islands  under 
American  sovereignty  has  given  to  the  attitude  of  the 
President  upon  such  issues  rather  more  significance  than 
in  most  matters  of  exclusively  Congressional  cognizance. 
After  the  exchange  of  ratifications  of  the  treaty  of 
Paris  in  April  of  1899,  and  until  the  organic  act  of 
July  1,  1902,  Congress  acquiesced  in  the  government  of 
the  Islands  by  the  President  as  Commander  in  Chief  of 
the  Army  and  Navy  without  interference,  and  when  it 
passed  the  organic  act  it  not  only  confirmed  in  every 
respect  the  anomalous  quasi-civil  government  which  he 
had  created,  but  it  also  made  his  instructions  to  the 
Secretary  of  War  part  of  its  statute,  and  followed 
therein  his  recommendation  as  to  future  extensions  of 
popular  political  control.  This  close  adherence  of  Con- 
gress to  the  views  of  the  Executive  in  respect  to  the 
Islands  in  the  past  gives  ground  for  ascribing  to  Con- 
gress approval  of  the  Philippine  policy,  as  often  de- 


THE  PHILIPPINE  ASSEMBLY  13 

clared  by  President  McKinley  and  President  Roosevelt. 
Still,  I  have  no  authority  to  speak  for  Congress  in  re- 
spect to  the  ultimate  disposition  of  the  Islands.  I  can 
only  express  an  opinion  as  one  familiar  with  the  circum- 
stances likely  to  affect  Congress,  in  the  light  of  its 
previous  statutory  action. 

The  avowed  policy  of  the  National  Administration 
under  these  two  Presidents  has  been  and  is  to  govern  the 
Islands,  having  regard  to  the  interest  and  welfare  of  the 
Filipino  people,  and  by  the  spread  of  general  primary 
and  industrial  education  and  by  practice  in  partial 
political  control  to  fit  the  people  themselves  to  maintain 
a  stable  and  well-ordered  government  affording  equality 
of  right  and  opportunity  to  all  citizens.  The  policy 
looks  to  the  improvement  of  the  people  both  industrially 
and  in  self-governing  capacity.  As  this  policy  of  ex- 
tending control  continues,  it  must  logically  reduce  and 
finally  end  the  sovereignty  of  the  United  States  in  the 
Islands,  unless  it  shall  seem  wise  to  the  American  and 
the  Filipino  peoples,  on  account  of  mutually  beneficial 
trade  relations  and  possible  advantage  to  the  Islands 
in  their  foreign  relations,  that  the  bond  shall  not  be 
completely  severed. 

How  long  this  process  of  political  preparation  of  the 
Filipino  people  is  likely  to  be  is  a  question  which  no  one 
can  certainly  answer.  When  I  was  in  the  Islands  the 
last  time,  I  ventured  the  opinion  that  it  would  take  con- 
siderably longer  than  a  generation.  I  have  not  changed 
my  view  upon  this  point ;  but  the  issue  is  one  upon  which 
opinions  differ.  However  this  may  be,  I  believe  that  the 
policy  of  the  Administration  as  outlined  above  is  as 
definite  as  the  policy  of  any  government  in  a  matter  of 
this  kind  can  safely  be  made.  We  are  engaged  in  work- 
ing out  a  great  experiment.     No  other  nation  has  at- 


14  THE  INAUGURATION  OF 

tempted  it,  and  for  us  to  fix  a  certain  number  of  years 
in  which  the  experiment  must  become  a  success  and  be 
completely  realized  would  be,  in  my  judgment,  unwise. 
As  I  premised,  however,  this  is  a  question  for  settlement 
by  the  Congress  of  the  United  States. 

Our  Philippine  policy  has  been  subjected  to  the  sever- 
est condemnation  by  critics  who  occupy  points  of  view  as 
widely  apart  as  the  two  poles.  There  are  those  who 
say  that  we  have  gone  too  fast,  that  we  have  counted 
on  the  capacity  of  the  Filipino  for  political  development 
with  a  foolish  confidence  leading  to  what  they  regard  as 
the  disastrous  result  of  this  election.  There  are  others 
who  assert  that  we  have  denied  the  Filipino  that  which  is 
every  man's  birthright — to  govern  himself — and  have 
been  guilty  of  tyranny  and  a  violation  of  American  prin- 
ciples in  not  turning  the  government  over  to  the  people 
of  the  Islands  at  once. 

With  your  permission,  I  propose  to  consider  our 
policy  in  the  light  of  the  events  of  the  six  years  during 
which  it  has  been  pursued,  to  array  the  difficulties  of 
the  situation  which  we  have  had  to  meet  and  to  mention 
in  some  detail  what  has  been  accomplished. 

The  Civil  Government  was  inaugurated  in  1901  before 
the  close  of  a  war  between  the  forces  of  the  United  States 
and  the  controlling  elements  of  the  Philippine  people.  It 
had  sufficient  popular  support  to  overawe  many  of  those 
whose  disposition  was  friendly  to  the  Americans.  In 
various  provinces  the  war  was  continued  intermittently 
for  a  year  after  the  appointment  of  a  Civil  Governor 
in  July,  1901.  This  was  not  an  auspicious  beginning 
for  the  organization  of  a  people  into  a  peaceful  com- 
munity acknowledging  allegiance  to  an  alien  power. 

Secondly,  there  was,  in  the  United  States,  a  strong 
minority  party  that  lost  no  opportunity  to  denounce  the 


THE  PHILIPPINE  ASSEMBLY  15 

policy  of  the  Government  and  to  express  sympathy  with 
those  arrayed  in  arms  against  it,  and  declared  in  party 
platform  and  in  other  ways  its  intention,  should  it  come 
into  power,  to  turn  the  Islands  over  to  an  independent 
government  of  their  people.  This  not  only  prolonged 
the  war,  but  when  peace  finally  came,  it  encouraged  a 
sullenness  on  the  part  of  many  Filipinos  and  a  lack  of 
interest  in  the  progress  and  development  of  the  existing 
government,  that  were  discouraging.  It  offered  the 
hope  of  immediate  independence  at  the  coming  of  every 
national  election  by  the  defeat  of  the  Administration  at 
the  polls.  This  was  not  of  assistance  in  carrying  out  a 
policy  that  depended  for  its  working  on  the  political  edu- 
cation of  the  people  by  their  cordial  participation,  first, 
in  the  new  municipal  and  provincial  governments,  and 
finally  in  the  election  of  a  National  Assembly.  The  re- 
sult has  been  that  during  the  educational  process  there 
has  been  a  continuing  controversy  as  to  the  political 
capacity  of  the  Filipino  people.  It  has  naturally  been 
easy  to  induce  a  majority  of  the  electorate  to  believe  that 
they  are  now  capable  of  maintaining  a  stable  govern- 
ment. All  this  has  tended  to  divert  the  people's  atten- 
tion from  the  existing  government,  although  their  use- 
ful participation  in  that  must  measure  their  progress 
toward  fitness  for  complete  autonomy. 

The  impatience  of  the  popular  majority  for  further 
power  may  be  somewhat  mitigated  as  the  extent  of  the 
political  control  which  is  placed  in  the  hands  of  the 
people  increases,  and  as  they  become  more  familiar  with 
the  responsibilities  and  the  difficulties  of  actual  power. 
The  difference  between  the  attitude  of  an  irresponsible 
critic  who  has  behind  him  the  easily  aroused  prejudices 
of  a  people  against  an  alien  government,  and  that  of  one 
who  attempts  to  formulate  legislation  which  shall  accom- 


16  THE  INAUGURATION  OF 

plish  a  definite  purpose  for  the  good  of  his  own  people, 
is  a  healthful  lesson  for  the  ambitious  statesman  to  learn. 
Other  formidable  political  obstacles  had  to  be  over- 
come. There  still  remained  present  in  the  situation  in 
1901  the  smoldering  ashes  of  the  issues  which  had  led 
the  people  to  rebel  against  the  power  of  Spain — I  mean 
the  prospective  continuance  of  the  influence  of  the  regu- 
lar religious  orders  in  the  parochial  administration  of 
the  Roman  Catholic  Church  in  the  Islands  and  their 
ownership  of  most  valuable  and  extensive  agricultural 
lands  in  the  most  populous  provinces.  The  change  of 
sovereignty  to  a  Government  which  could  exercise  no 
control  over  the  Church  in  its  selection  of  its  agents 
made  the  new  regime  powerless,  by  act  or  decree,  to  pre- 
vent the  return  of  the  friars  to  the  parishes,  and  yet 
the  people  were  disposed  to  hold  the  Government  re- 
sponsible whenever  this  was  proposed.  It  would  have 
been  fraught  with  great  danger  of  political  disturbance. 
It  was  also  essential  that  the  religious  orders  should 
cease  to  be  agricultural  landlords  in  order  to  eliminate 
the  agrarian  question  arising  between  them  and  sixty 
thousand  tenants  which  had  played  so  large  a  part 
in  the  previous  insurrections  against  Spain.  These  re- 
sults were  to  be  attained  without  offending,  or  infring- 
ing upon  the  rights  of,  the  Roman  Catholic  Church,  the 
influence  of  which  for  good  in  the  Islands  could  not  be 
denied.  Other  political  difficulties  attending  the  trans- 
fer of  a  sovereignty  from  a  Government  in  which  the 
interests  of  the  State  and  the  Church  were  inextricably 
united  to  one  in  which  they  must  be  absolutely  separated, 
I  need  not  stop  to  elaborate.  The  religious  and  property 
controversies  arising  out  of  the  Aglipayan  schism,  and 
the  disturbances  caused,  added  much  to  the  burden  of 
the  Government. 


THE  PHILIPPINE  ASSEMBLY  17 

The  novelty  of  the  task  for  the  United  States  and 
her  people,  the  lack  of  the  existence  of  a  trained  body 
of  colonial  administrators  and  civil  servants,  the  depend- 
ence for  a  time  upon  men  as  government  agents  who 
had  come  out  in  a  spirit  of  adventure  to  the  Islands  and 
some  of  whom  proved  not  to  be  fitted  either  by  character 
or  experience  for  the  discharge  of  responsible  public 
duties,  gave  additional  cause  for  discouragement. 

Another  great  difficulty  in  working  out  our  policy  in 
these  Islands  has  been  the  reluctance  of  capitalists  to 
invest  money  here.  Political  privileges,  if  unaccom- 
panied by  opportunities  to  better  their  condition,  are 
not  likely  to  produce  permanent  contentment  among  a 
people.  Hence  the  political  importance  of  developing 
the  resources  of  these  Islands  for  the  benefit  of  its  in- 
habitants. This  can  only  be  done  by  attracting  capital. 
Capital  must  have  the  prospect  of  security  in  the  invest- 
ment and  a  certain  return  of  profit  before  it  will  become 
available.  The  constant  agitation  for  independence  in 
the  Islands,  apparently  supported  by  the  minority  party 
in  the  United  States,  and  the  well-founded  fear  that 
an  independent  Philippine  government  now  established 
would  not  be  permanent  and  stable  have  made  capitalists 
chary  of  attempting  to  develop  the  natural  resources  of 
the  Islands.  The  capital  which  has  come  has  only  come 
reluctantly  and  on  terms  less  favorable  to  the  public 
than  would  have  been  exacted  under  other  conditions. 

Another  difficulty  of  the  same  character  as  the  last 
in  preventing  material  progress  has  been  the  failure 
of  Congress  to  open  the  markets  of  the  United  States 
to  the  free  admission  of  Philippine  sugar  and  tobacco. 
In  every  other  way  Congress  has  shown  its  entire  and 
generous  sympathy  with  the  policy  of  the  Administra- 
tion; and  in  this  matter  the  popular  branch  of  that 


18  THE  INAUGURATION  OF 

body  passed  the  requisite  bill  for  the  purpose  by  a  large 
majority.  Certain  tobacco  and  sugar  interests  of  the 
United  States,  however,  succeeded  in  strangling  the 
measure  in  the  Senate  committee.  I  have  good  reason 
for  hope  that  in  the  next  Congress  we  may  be  able  to 
secure  a  compromise  measure  which  shall  restore  the 
sugar  and  tobacco  agriculture  of  the  Islands  to  its 
former  prosperity,  and  at  the  same  time  by  limitations 
upon  the  amounts  of  importation  allay  the  fears  of  in- 
jury on  the  part  of  the  opponents  of  the  measure.  Still, 
the  delay  in  this  much-needed  relief  has  greatly  retarded 
the  coming  of  prosperous  times  and  has  much  dis- 
couraged supporters  of  our  policy  in  America  who  have 
thought  this  indicated  a  lack  of  national  purpose  to 
make  the  present  altruistic  policy  a  success. 

But  the  one  thing  that  interfered  with  material  prog- 
ress in  the  Islands,  more  than  all  other  causes  put  to- 
gether, was  the  rinderpest  which  carried  away  from 
75  to  80  per  cent,  of  the  cattle  that  were  absolutely  in- 
dispensable in  cultivating,  reaping  and  disposing  of 
the  agricultural  products  upon  which  the  Islands  are 
wholly  dependent.  The  extent  of  this  terrible  disaster 
can  not  be  exaggerated  and  the  Islands  have  not  yet 
recovered  from  it.  Attempts  to  remedy  the  evil  by  the 
importation  of  cattle  from  other  countries  have  proved 
futile,  and  the  Islands  can  not  be  made  whole  in  this  re- 
spect except  by  the  natural  reproduction  of  the  small 
fraction  of  the  animals  that  escaped  destruction.  This 
is  not  a  matter  of  a  year,  or  of  two  years  or  of  three 
years,  but  a  matter  of  a  decade.  Then,  too,  there  were 
in  these  years  surra,  locusts,  drought,  destructive  ty- 
phoons, cholera,  bubonic  plague  and  smallpox,  ladron- 
ism  and  pulajanism.  The  long  period  of  disturbance,  of 
guerrilla  warfare  and  unrest,  which  interfered  for  years 


THE  PHILIPPINE  ASSEMBLY  19 

with  the  carrying  on  of  the  peaceful  arts  of  agriculture 
and  made  it  so  easy  for  those  who  had  been  used  to 
work  in  the  fields  to  assume  the  wild  and  loose  life  of 
predatory  bands  claiming  to  be  liberating  armies,  all 
made  a  burden  for  the  community  that  it  was  almost 
impossible  for  it  to  bear. 

Whea  I  consider  all  these  difficulties,  which  I  have 
rehearsed  at  too  great  length,  and  then  take  account  of 
the  present  conditions  in  the  Islands,  it  seems  to  me  that 
they  present  an  occasion  for  profound  satisfaction  and 
that  they  fully  vindicate  the  policy  which  has  been 
pursued. 

How  have  we  met  the  difficulties?  In  the  first  place, 
we  have  carried  out  with  entire  fidelity  the  promises  of 
Presidents  McKinley  and  Roosevelt  in  respect  to  the 
gradual  extension  of  political  control  in  the  Government 
as  the  people  should  show  themselves  fit.  In  1901  the 
Commission  adopted  the  Municipal  Code,  which  vested 
complete  autonomy  in  the  adult  male  citizens  of  every 
municipality  in  the  Islands,  except  that  of  Manila, 
which  for  special  reasons,  like  those  which  have  pre- 
vailed with  respect  to  the  government  of  the  city  of 
Washington,  was  preserved  for  control  by  the  Central 
Government.  The  electorate  was  limited  to  those  who 
could  speak  English  or  Spanish,  or  who  paid  a  tax  of 
3P  15  a  year,  or  who  had  filled  municipal  office  under  the 
Spanish  regime,  and  did  not  exceed  20  per  cent,  of  the 
total  adult  males  of  the  population.  Very  shortly  after 
this  a  form  of  provincial  government  was  established  in 
which  the  legislative  and  executive  control  of  the  prov- 
ince was  largely  vested  in  a  provincial  board  consisting 
of  a  governor  and  treasurer  and  supervisor.  Provision 
was  made  for  the  election  of  a  governor  and  the 
appointment   under    civil-service   rules    of    a   treasurer 


20  THE  INAUGURATION  OF 

and  supervisor.  Subsequently  it  was  found  that  the 
government  was  too  expensive  and  the  office  of  super- 
visor was  finally  abolished,  and  after  some  four  years 
the  board  was  made  to  consist  of  a  governor  and  treas- 
urer, and  a  third  member  elected  as  the  governor  was, 
thus  effecting  popular  autonomy  in  the  provincial  gov- 
ernments.    And  now  comes  the  Assembly. 

It  is  said  by  one  set  of  critics,  to  whom  I  have  al- 
ready referred,  that  the  franchise  is  the  last  privilege 
that  ought  to  be  granted  in  the  development  of  a  people 
into  a  self-governing  community,  and  that  we  have  put 
this  into  the  hands  of  the  Filipinos  before  they  have 
shown  themselves  to  be  industrially  and  in  other  ways 
capable  of  exercising  the  self-restraint  and  conservatism 
of  action  which  are  essential  to  political  stability.  I  can 
not  agree  with  this  view.  The  best  political  education  is 
practice  in  the  exercise  of  political  power,  unless  the 
subject  is  so  ignorant  as  to  be  wholly  blind  to  his  own 
interests.  Hence  the  exercise  of  a  franchise  which  is 
conferred  only  on  those  who  have  qualifications  of  edu- 
cation or  property  that  prove  intelligence  and  substance, 
is  likely  to  teach  the  electorate  useful  political  lessons. 
The  electorate  under  the  Philippine  law  are  sufficiently 
alive  to  their  own  interests  to  make  the  exercise  of  politi- 
cal power  a  useful  training  for  them,  while  the  power 
to  be  exercised  is  subject  to  such  limitation  as  not  to 
be  dangerous  to  the  community.  More  than  this,  the 
granting  of  the  franchise  was  most  useful  in  producing 
tranquillity  among  the  people.  The  policy  has  been  vin- 
dicated by  the  fact. 

The  importance  of  the  agency  of  the  Army  of  the 
United  States  in  suppressing  insurrection  I  would  not 
minimize  in  the  least;  but  all  who  remember  clearly  the 
succession  of  events  from  1901  to  1903  will  admit  that 


THE  PHILIPPINE  ASSEMBLY  21 

the  return  to  peace  and  the  acquiescence  of  the  Fili- 
pino people  in  American  sovereignty  were  greatly  influ- 
enced and  aided  by  the  prospect  held  out  to  the  Filipinos 
of  participation  in  the  government  of  the  Islands  and  a 
gradual  extension  of  popular  self-control.  Without  this 
and  the  confidence  of  the  Filipino  people  in  the  good 
purposes  of  the  United  States  and  the  patience  with 
which  they  endured  their  many  burdens  that  fate  seemed 
to  increase,  the  progress  which  has  been  achieved  would 
have  been  impossible. 

Let  us  consider  in  some  detail  what  progress  has  been 
made: 

First.  To  repeat  what  I  have  said,  the  Islands  are  in 
a  state  of  tranquillity.  On  this  very  day  of  the  open- 
ing of  the  National  Assembly,  there  has  never  been  a  time 
in  the  history  of  the  Islands  when  peace  and  good  order 
have  prevailed  more  generally.  The  difficulties  pre- 
sented by  the  controversies  arising  with  and  concerning 
the  Roman  Catholic  Church  have  either  been  completely 
settled  or  are  in  process  of  satisfactory  adjustment  on  a 
basis  of  justice  and  equity. 

Second.  Most  noteworthy  progress  has  been  made  in 
the  spread  of  general  education.  One  of  the  obstacles 
to  the  development  of  this  people  speaking  half  a  dozen 
or  more  different  native  dialects  was  a  lack  of  a  common 
language,  which  would  furnish  a  medium  of  sympathetic 
touch  with  modern  thought  and  civilization.  The 
dense  ignorance  of  a  very  large  proportion  of  the  people 
emphasized  the  necessity  for  a  general  educational  sys- 
tem. English  was  the  language  of  the  sovereign  power, 
English  was  the  business  language  of  the  Orient,  Eng- 
lish was  the  language  in  which  was  thought  and  written 
the  history  of  free  institutions  and  popular  government, 
and  English  was  the  language  to  which  the  common 


22  THE  INAUGURATION  OF 

people  turned  with  eagerness  to  learn.  A  system  of 
education  was  built  up,  and  to-day  upward  of  half  a 
million  children  are  being  taught  to  read,  write  and 
recite  English.  It  is  not  an  exaggeration  to  assert  that 
now  more  native  Filipinos  speak  English  than  Spanish, 
although  Spanish  was  the  language  of  the  ruling  race 
in  these  Islands  for  more  than  two  hundred  and  fifty 
years.  English  is  not  so  beautiful  as  the  Spanish  lan- 
guage, but  it  is  more  likely  to  prove  of  use  to  the 
Filipinos  for  the  reasons  I  have  given.  The  strongest 
basis  for  our  confidence  in  the  future  of  the  Filipino 
people  is  the  eagerness  with  which  the  opportunities  ex- 
tended for  education  in  English  have  been  seized  by  the 
poor  and  ignorant  parents  of  these  Islands  for  their 
children.     It  is  alike  pathetic  and  encouraging. 

I  am  not  one  of  those  who  believe  that  much  of  the 
public  money  should  be  expended  here  for  university  or 
advanced  education.  Perhaps  one  institution  merely  to 
form  a  type  of  higher  education  may  be  established  at 
Manila  or  at  some  other  suitable  place  in  the  Islands, 
and  special  schools  to  develop  needed  scientific  profes- 
sions may  be  useful,  but  the  great  part  of  the  public 
funds  expended  for  education  should  be  used  in  the 
spread  of  primary  education  and  of  industrial  educa- 
tion— that  education  which  shall  fit  young  men  to  be 
good  farmers,  good  mechanics,  good  skilled  laborers, 
and  shall  teach  them  the  dignity  of  labor  and  that  it  is 
no  disgrace  for  the  son  of  a  good  family  to  learn  his 
trade  and  earn  his  livelihood  by  it.  The  higher  educa- 
tion is  well  for  those  who  can  use  it  to  advantage,  but 
it  too  often  fits  a  man  to  do  things  for  which  there  is 
no  demand,  and  unfits  him  for  work  which  there  are  too 
few  to  do.  The  enlargement  of  opportunity  for  higher 
education  may  well  await  private  beneficence  or  be  post- 


THE  PHILIPPINE  ASSEMBLY  23 

poned  to  a  period  when  the  calls  upon  the  Island 
Treasury  for  other  more  important  improvements  have 
ceased.  We  have  laid  the  foundation  of  a  primary  and 
industrial  educational  system  here  which,  if  the  same 
spirit  continues  in  the  Government,  will  prove  to  be  the 
most  lasting  benefit  which  has  been  conferred  on  these 
Islands  by  Americans. 

Third.  We  have  introduced  here  a  health  depart- 
ment which  is  gradually  teaching  the  people  the  neces- 
sity for  sanitation.  In  the  years  to  come,  when  the 
great  discoveries  of  the  world  are  recited,  that  which 
will  appear  to  have  played  as  large  a  part  as  any 
in  the  world's  progress  in  the  current  hundred  years 
will  be  the  discovery  of  proper  sanitary  methods  for 
avoiding  disease  in  the  Tropics.  The  introduction  of 
such  methods,  the  gradual  teaching  of  the  people  the 
simple  facts  affecting  hygiene,  unpopular  and  difficult 
as  the  process  of  education  has  been,  will  prove  to  be 
another  one  of  the  great  benefits  given  by  Americans  to 
this  people. 

The  efforts  of  the  Government  have  not  been  confined 
to  preserving  the  health  of  the  human  inhabitants  of 
these  Islands,  but  have  been  properly  extended  to  doing 
what  can  be  done  in  the  matter  of  the  health  of  the 
domestic  animals  which  is  so  indispensable  to  the  mate- 
rial progress  of  the  Islands.  The  destruction  by  rinder- 
pest, by  surra,  and  by  other  diseases  to  which  cattle 
and  horses  are  subject,  I  have  already  dwelt  upon. 
Most  earnest  attention  has  been  given  by  men  of  the 
highest  scientific  attainment  to  securing  some  remedy 
which  will  make  such  widespread  disasters  in  the  future 
impossible.  Much  time  and  effort  and  money  have  been 
spent  and  much  has  been  accomplished  in  this  matter. 
The  people  are  being  educated  in  the  necessity  for  care 


24  THE  INAUGURATION  OF 

of  their  cattle  and  for  inviting  in  public  aid  at  once 
when  the  dread  rinderpest  shows  its  presence.  Serums 
have  been  discovered  that  have  been  effective  to  immunize 
cattle,  and  while  the  disease  has  not  disappeared,  it  is  not 
too  much  to  say  that  such  an  epidemic  as  that  which 
visited  the  Islands  in  1900,  1901  and  1902  is  impossible. 

Fourth.  A  judicial  system  has  been  established  in  the 
Islands  which  has  taught  the  Filipinos  the  possibility  of 
the  independence  of  a  judiciary.  This  must  be  of  en- 
during good  to  the  people  of  the  Islands.  The  personnel 
of  the  judges  is  divided  between  Americans  and  Fili- 
pinos, both  for  the  purpose  of  aiding  the  Americans  to 
learn  and  administer  civil  law  and  of  enabling  the  Fili- 
pinos to  learn  and  administer  justice  according  to  a 
system  prevailing  in  a  country  where  the  judiciary  is  ab- 
solutely independent  of  the  executive  or  legislative 
branches  of  the  Government.  Charges  have  been  made 
that  individual  judges  and  particular  courts  have  not 
been  free  from  executive  control  and  have  not  been 
without  prejudices  arising  from  the  race  of  the  particu- 
lar judge  who  sat  in  the  court,  but  on  the  whole  an  im- 
partial review  of  the  six  years'  history  of  the  adminis- 
tration of  justice  will  show  that  the  system  has  been 
productive  of  the  greatest  good  and  that  right  has  been 
sustained  without  fear  or  favor.  It  is  entirely  natural 
that  a  system  which  departs  from  the  principles  of  that 
in  which  one  has  been  educated  should  at  times  attract 
his  severe  animadversion,  and  as  the  system  here  admin- 
istered partakes  of  two  systems,  it  is  subject  to  the 
criticism  of  those  trained  in  each. 

Another  agency  in  the  administration  of  justice  has 
been  the  Constabulary.  When  I  was  here  something 
more  than  two  years  ago,  the  complaints  against  that 
body  were  numerous,  emphatic  and  bitter.     I  promised, 


THE   PHILIPPINE  ASSEMBLY  9.6 

on  behalf  of  the  Philippine  government  and  the  Wash- 
ington Administration,  that  close  investigation  should 
be  made  into  the  complaints  and  that  if  there  was  oc- 
casion for  reform,  that  reform  would  be  carried  out. 
It  gratifies  me  on  my  return  to  the  Islands  now  to 
learn  that  a  change  has  come,  that  the  complaints 
against  the  Constabulary  have  entirely  ceased,  and  that 
it  is  now  conceded  to  be  discharging  with  efficiency  the 
function  which  it  was  chiefly  created  to  perform,  of 
sympathetically  aiding  the  provincial  governors  and 
municipal  authorities  of  the  Islands  in  maintaining  the 
peace  of  each  province  and  each  municipality,  and  that 
there  is  a  thorough  spirit  of  cooperation  between  the 
officers  and  men  of  the  Constabulary  and  the  local  au- 
thorities. 

In  respect  to  the  administration  of  justice  by  justices 
of  the  peace,  reforms  have  been  effected,  but  I  am  not 
sure  that  there  is  not  still  great  room  for  improvement. 
This  is  one  of  the  things  that  come  home  close  to  the 
people  of  the  country  and  is  a  subject  that  will  doubt- 
less address  itself  to  the  wise  action  and  consideration  of 
the  National  Assembly. 

Fifth.  We  come  to  the  matter  of  public  improve- 
ments. The  port  of  Manila  has  been  made  into  a  harbor 
which  is  now  as  secure  as  any  in  the  Orient,  and  which, 
with  the  docking  facilities  that  are  now  being  rapidly 
constructed,  will  be  as  convenient  and  as  free  from 
charge  and  burden  as  any  along  the  Asiatic  coast.  The 
improvements  in  Iloilo  and  Cebu  harbors,  the  other  two 
important  ports  of  the  Islands,  are  also  rapidly  pro- 
gressing. Road  building  has  proceeded  in  the  Islands, 
both  at  the  instance  of  the  Central  Government  and 
through  the  agency  of  the  provinces.  The  difficulties  of 
road  building  and  road  maintaining  in  the  Philippines 


26  THE  INAUGURATION  OF 

are  little  understood  by  those  not  familiar  with  the  diffi- 
culty of  securing  proper  material  to  resist  the  enormous 
wear  and  tear  caused  by  the  torrential  downpours  of  the 
rainy  season.  Progress  in  this  direction  must  neces- 
sarily be  gradual,  for  the  Islands  are  a  poor  country, 
comparatively  speaking,  and  roads  are  expensive. 

Early  in  the  history  of  the  Islands  we  began  the  con- 
struction of  a  road  from  Pangasinan  to  the  mountains 
of  Benguet  in  order  to  bring  within  the  reach  of  the 
people  of  the  Islands  that  healthful  region  where  the 
thermometer  varies  from  40  to  80  degrees,  and  in  which 
all  the  diseases  of  the  Tropics  are  much  more  easily 
subject  to  cure  than  in  the  lowlands.  Had  it  been 
supposed  that  the  road  thus  to  be  constructed  would  in- 
volve an  expense  of  nearly  two  millions  of  dollars,  the 
work  would  not  have  been  begun,  but,  now  that  the  road 
has  been  constructed,  I  would  not  undo  what  has  been 
done  even  if  it  were  possible.  As  time  progresses,  the 
whole  Province  of  Benguet  will  be  settled;  there  will  be 
made  the  home  of  many  educational  institutions,  of 
many  sanitariums,  and  there  will  go,  as  transportation 
becomes  cheaper,  the  Filipino  people  to  obtain  a  change 
of  air  and  acquire  a  renewed  strength  that  is  given  to 
tropical  peoples  by  a  visit  to  the  temperate  zone. 

When  the  Americans  came  to  the  Islands  there  was  one 
railroad  120  miles  long,  and  that  was  all.  In  spite  of 
circumstances,  which  I  have  already  detailed,  making 
capital  reluctant  to  come  here,  contracts  have  now  been 
entered  into,  that  are  in  the  course  of  fulfillment,  which 
in  five  years  will  give  to  the  Islands  a  railroad  mileage 
of  1,000  miles.  The  construction  of  these  roads  will 
involve  the  investment  of  twenty  to  thirty  millions 
of  dollars,  and  that  in  itself  means  an  added  prosperity 
to  the  country,  additional  demands  for  labor,  and  the 


THE  PHILIPPINE  ASSEMBLY  27 

quickening  of  all  the  nerves  of  trade.  When  the  work 
is  finished,  it  means  a  great  additional  profit  to  agricul- 
ture, a  very  great  enlargement  of  the  export  capacity 
of  the  Islands,  and  a  substantial  elevation  of  the  material 
condition  of  the  people. 

In  the  matter  of  municipal  improvements,  which  di- 
rectly concern  the  people,  that  which  has  taken  place 
in  Manila  is  most  prominent.  The  improvement  of  the 
streets,  the  introduction  of  a  satisfactory  street  rail- 
way system  35  miles  in  length,  the  improvement  of  the 
general  appearance  of  the  city  and  its  hygienic  con- 
dition, the  construction  of  new  waterworks  and  a  new 
sewage  system,  all  strike  one  who  knew  the  city  in  1900. 
The  improvements  of  other  municipalities  in  the  Islands 
have  not  kept  pace  with  those  in  Manila,  and  of  course 
they  were  not  so  imperatively  needed ;  but  the  epidemics 
of  cholera  and  plague  and  smallpox  which  have  pre- 
vailed have  convinced  those  in  authority  of  the  neces- 
sity of  bettering  the  water  supply  of  all  municipalities 
and  for  improving  this  by  the  sinking  of  artesian  wells 
and  other  means,  so  that  bad  water,  that  frightful 
source  of  the  transmission  of  disease,  should  be  reduced 
to  a  minimum. 

The  government  now  maintains  and  operates  a  more 
complete  system  of  posts,  telephones  and  telegraphs 
than  ever  before  in  the  history  of  the  Islands.  Seventy- 
five  per  cent,  of  the  652  municipalities  now  established  in 
these  Islands  have  post-offices,  in  235  of  which  there 
are  now  opened  for  business  postal  savings  banks.  The 
telegraph  or  telephone  now  connects  all  of  the  provincial 
capitals  with  Manila  and  more  than  90  offices  are  now 
open  for  business.  Appropriation  has  been  made  to 
provide  for  a  system  of  rural  free  delivery.  In  less 
than  one  year  of  operation  the  Postal  Savings  Bank  has 


28  THE  INAUGURATION  OF 

deposits  exceeding  f*  600,000,  and  the  number  of  Fili- 
pino depositors  now  exceeds  1,000,  and  the  proportion 
of  their  deposits  is  steadily  increasing. 

Sixth.  We  have  inaugurated  a  civil  service  law  for 
the  selection  of  civil  servants  upon  the  merit  system.  On 
the  whole  it  has  worked  well.  It  has  grown  with  our 
experience  and  has  improved  with  the  disclosure  of  its 
defects. 

One  of  the  burning  questions  which  constantly  pre- 
sents itself  in  respect  to  the  civil  service  of  a  Government 
like  this  is,  how  far  it  shall  be  American  and  how  far 
Filipino.  In  the  outset  it  was  essential  that  most  of 
the  civil  servants  of  the  government  should  be  Ameri- 
cans. The  government  was  English  speaking,  and  the 
practical  difficulty  of  having  subordinates  who  did  not 
speak  that  language  prevented  large  employment  of 
Filipinos.  Then  their  lack  of  knowledge  of  Ameri- 
can governmental  and  business  methods  had  the  same 
tendency.  The  avowed  policy  of  the  government  has 
been  to  employ  Filipinos  wherever,  as  between  them  and 
Americans,  the  Filipinos  can  do  equally  good  work. 
This  has  given  rise  to  frequent  and  bitter  criticism,  be- 
cause it  has  been  improperly  assumed  that  every  time 
there  has  been  a  vacancy,  it  could  be  filled  by  a 
Filipino.  There  are  two  great  advantages  in  the  em- 
ployment of  Filipinos — one  is  that  this  is  the  govern- 
ment of  the  Filipinos  and  they  ought  to  be  employed 
where  they  can  be,  and  the  other  is  that  their  employ- 
ment is  a  matter  of  economy  for  the  government,  because 
they  are  able  to  live  more  cheaply  and  economically  in 
the  Islands  than  Americans  and  so  can  afford  to  receive 
less  salary.  There  has  therefore  been  a  constant  reduc- 
tion of  American  employees  and  an  increase  of  Filipinos. 
This  has  not  been  without  its  disadvantage  because  it 


THE  PHILIPPINE  ASSEMBLY  29 

makes  competent  American  employees  feel  an  uncer- 
tainty of  tenure,  and  materially  affects  their  hope  of 
promotion  and  their  interest  in  the  government  of  which 
they  are  a  part.  This  disadvantage  I  believe  can  be 
largely  obviated. 

There  are  many  American  civil  servants  in  this  gov- 
ernment who  have  rendered  most  loyal,  difficult  and  effi- 
cient service,  in  season  and  out  of  season,  through 
plague  and  epidemic,  in  sickness  and  in  health,  in  full 
sympathy  with  the  purposes  and  policy  of  the  govern- 
ment. Without  them  our  government  would  have  been 
a  complete  failure.  They  will  never  receive  adequate 
reward.  Their  interest  in  their  work  has  prevented  their 
return  to  their  native  land,  where  the  same  energy  and 
efficiency  would  have  earned  them  large  return.  They 
are  most  valuable  public  servants  who  have  done  a  work 
that,  had  they  done  it  in  the  English  colonial  service 
or  at  home,  would  have  been  certain  to  secure  to  them  a 
permanent  salary  and  entire  freedom  from  anxiety  as  to 
the  future.  I  would  be  glad  to  see  adopted  a  system  of 
permanent  tenure  and  retirement  on  pensions  for  the 
small  and  higher  classes  of  civil  employees.  Their  con- 
tinuance in  the  government  indefinitely  is  a  public  neces- 
sity. I  sincerely  hope  the  Philippine  Assembly  will  ex- 
hibit its  spirit  of  justice  and  public  interest  to  the  point 
of  concurring  in  such  a  measure  even  though  this,  at 
present,  will  be  of  benefit  to  more  Americans  than 
Filipinos. 

Seventh.  In  the  progress  which  has  been  made,  I 
should  mention  the  land  system,  the  provision  for  home- 
stead settlement,  for  free  patents,  and  for  perfecting  of 
imperfect  titles  by  land  registration.  The  homestead 
settlements  under  the  law  were  very  few  for  several 
years,  but  I  am  delighted  to  learn  that  during  1907 


80  THE  INAUGURATION  OF 

they  reached  4,000  and  the  free  patents  applied  for 
were  10,600.  It  is  probable  that  the  machinery  for  land 
registration,  though  necessary,  is  too  expensive,  and  it 
will  be  for  you  to  decide  whether,  in  view  of  the  great 
public  benefit  that  good  land  titles  will  bring  to  the 
country,  it  may  not  be  wise  to  reduce  the  cost  of  regis- 
tration to  the  landowner  and  charge  the  expense  to  the 
government.  Capital  will  not  be  advanced  to  the  farmer 
unless  his  title  is  good,  and  the  great  benefit  of  an  agri- 
cultural bank  can  never  be  realized  until  the  registration 
of  titles  is  greatly  increased. 

This  naturally  brings  me  to  the  subject  of  the  Agri- 
cultural Bank.  After  much  effort  Congress  was  in- 
duced to  pass  an  act  which  authorizes  the  Philippine 
Government  to  invite  the  organization  of  such  a  bank 
with  private  capital  by  guaranteeing  an  annual  income 
of  a  certain  percentage  on  the  capital  invested  for  thirty 
years.  Negotiations  have  been  opened  and  are  pending 
with  some  American  capitalists  in  the  hope  of  securing 
the  establishment  of  such  a  bank. 

The  condition  of  agriculture  in  the  Islands,  while  gen- 
erally much  improved  in  the  last  three  years,  is  still  un- 
satisfactory in  many  parts  of  the  Islands,  due  not  only 
to  the  continued  scarcity  of  cattle  but  also  to  the  de- 
structive effect  of  the  typhoon  of  1905  upon  the  hemp 
culture.  This  has  properly  led  to  the  suspension  of  the 
land  tax  for  another  year  and  the  meeting  of  half  the 
deficit  in  provincial  and  municipal  treasuries  thus  pro- 
duced, out  of  the  central  treasury. 

The  production  of  rice  has,  however,  materially  in- 
creased. It  is  also  a  source  of  satisfaction  to  note  that 
the  exports  from  the  Islands,  which  are  wholly  agricul- 
tural, are  larger  in  value  by  half  a  million  gold  dollars 
than  ever  in  the  history  of  the  Islands.    One  of  the  chief 


THE  PHILIPPINE  ASSEMBLY  31 

duties  of  this  Assembly  is  to  devote  its  attention  and 
practical  knowledge  to  measures  for  the  relief  of  agri- 
culture. 

Eighth.  The  financial  condition  of  the  Philippine 
government  is  quite  satisfactory,  and  so,  too,  is  the  state 
of  the  money  and  currency  of  the  Islands.  There  is  a 
bonded  indebtedness  for  the  purchase  of  the  friar  lands 
amounting  to  $7,000,000,  for  the  waterworks  and  sew- 
age of  Manila  of  $3,000,000,  and  for  public  works 
amounting  to  $3,500,000.  Sinking  funds  have  been  es- 
tablished for  all  of  these.  The  price  paid  for  the  friar 
lands  was  a  round  one  and  may  result,  after  the  lands 
are  disposed  of,  in  some  net  pecuniary  loss  to  the 
Government,  but  the  political  benefit  of  the  purchase  was 
a  full  justification.  The  lands  will  be  disposed  of  to  the 
tenants  as  rapidly  as  the  public  interest  will  permit. 
The  only  other  permanent  obligation  of  the  government 
is  the  contingent  liability  on  the  guaranty  of  interest  for 
thirty  years  on  the  bonds  issued  to  construct  300  miles 
of  railroad  in  the  Visayas.  We  may  reasonably  hope 
that  this  obligation  will  soon  reduce  itself  to  nothing 
when  the  roads  come  into  successful  operation.  The 
Governor-General  reports  to  me  that  the  budget  for 
1908  will  show  an  income  and  surplus  from  last  year, 
without  any  land  tax,  from  which  it  will  be  possible 
to  pay  all  the  interest  on  the  bonds  and  guaranties,  all 
the  insular  expenses,  the  proper  part  of  the  expenses  of 
Manila,  $2,000,000  in  permanent  improvements,  and 
still  have  on  hand  for  contingencies  $1,000,000. 
I  am  further  advised  that  the  condition  of  most  of 
the  provinces  is  excellent  in  respect  to  income  and 
surplus. 

It  has  been  necessary  to  reduce  the  silver  in  the 
Philippine  peso  to  keep  its  intrinsic  value  within  the 


32  THE  INAUGURATION  OF 

value  of  50  cents,  gold,  at  which  it  is  the  duty  of  the 
government  to  maintain  it,  and  this  change  is  being 
rapidly  carried  through  without  much  difficulty.  The 
benefit  to  the  people,  and  especially  the  poorer  and 
working  classes,  in  the  establishment  of  the  gold  stand- 
ard is  very  great.  It  eliminates  a  gambling  feature 
from  the  business  of  the  Islands  that  always  worked  for 
the  detriment  of  the  Philippine  people.  We  are  just 
carrying  through  a  settlement  with  the  Spanish-Filipino 
Bank  which  I  hope  will  provide  a  means  of  safely  add- 
ing to  the  currency  of  the  country  and  increasing  its 
elasticity. 

In  recounting  these  various  evidences  of  progress  in 
the  last  six  years,  I  am  not  unmindful  that  the  business 
of  the  Islands  is  still  far  from  prosperous.  Indeed,  it 
is  noteworthy  that  so  much  progress  has  been  made  in 
the  face  of  continued  business  depression  due  to  the 
various  causes  I  have  elsewhere  enumerated;  but  it  is  a 
long  lane  that  has  no  turning  and  I  look  forward  to  the 
next  decade  in  the  history  of  the  Islands  as  one  which 
will  be  as  prosperous  as  this  one  has  been  the  reverse. 
Business  is  reviving,  the  investment  of  foreign  capi- 
tal is  gradually  increasing  and  only  one  thing  is  needed 
to  insure  great  material  improvement,  and  that  is  the 
continuance  of  conservatism  in  this  Government.  I  feel 
confident  that  the  inauguration  of  this  Assembly,  in- 
stead of  ending  this  conservatism  as  the  prophets  of  evil 
would  have  it,  will  strengthen  it. 

Before  discussing  the  Assembly,  I  wish  to  give  atten- 
*  tion  to  one  report  that  has  been  spread  to  the  four 
corners  of  the  globe,  and  which,  if  credited,  might  have 
a  pernicious  effect  in  these  Islands.  I  refer  to  the  state- 
ment that  the  American  Government  is  about  to  sell  the 
Islands  to  some  Asiatic  or  European  power.    Those  who 


THE  PHILIPPINE  ASSEMBLY  33 

credit  such  a  report  little  understand  the  motives  which 
actuated  the  American  people  in  accepting  the  burden 
of  this  Government.  The  majority  of  the  American 
people  are  still  in  favor  of  carrying  out  our  Philippine 
policy  as  a  great  altruistic  work.  They  have  no  selfish 
object  to  secure.  There  might  be  a  grim  and  temporary 
satisfaction  to  those  of  us  who  have  been  subjected  to 
severe  criticism  for  our  alleged  lack  of  liberality  toward 
the  Filipino  people  and  of  sympathy  with  their  aspira- 
tions, in  witnessing  the  rigid  governmental  control  which 
would  be  exercised  over  the  people  of  the  Islands  under 
the  colonial  policy  of  any  one  of  the  powers  to  whom  it 
is  suggested  that  we  are  about  to  sell  them;  but  that 
would  not  excuse  or  justify  the  gross  violation,  by  such 
a  sale,  of  the  implied  obligation  which  we  have  entered 
into  with  the  Filipino  people*  That  obligation  presents 
only  two  alternatives  for  us — one  is  a  permanent  main- 
tenance of  a  popular  government  of  law  and  order  under 
American  control,  and  the  other,  a  parting  with  such 
control  to  the  people  of  the  Islands  themselves  after  they 
have  become  fitted  to  maintain  a  government  in  which 
the  right  of  all  the  inhabitants  to  life,  liberty  and 
property  shall  be  secure.  I  do  not  hesitate  to  pro- 
nounce the  report  that  the  Government  contemplates 
the  transfer  of  these  Islands  to  any  foreign  power  as 
utterly  without  foundation.  It  has  never  entered  the 
mind  of  a  single  person  in  the  Government  responsible 
for  the  Administration.  Such  a  sale  must  be  the  sub- 
ject of  a  treaty,  and  the  treaty  power  in  the  Govern- 
ment of  the  United  States  is  exercised  by  the  President 
and  the  Senate,  and  only  upon  the  initiative  of  the 
President.  Hence  an  Executive  declaration  upon  this 
subject  is  more  authoritative  than  an  Executive  opinion 
as  to  probable  Congressional  action. 


34  THE  INAUGURATION  OF 

Coming  now  to  the  real  occasion  of  this  celebration, 
the  installation  of  the  National  Assembly,  I  wish,  for 
purposes  of  clearness,  to  read  the  section  of  the  organic 
act  under  which  this  Assembly  has  been  elected : 

That  two  years  after  the  completion  and  publication  of 
the  census,  in  case  such  condition  of  general  and  complete 
peace  with  recognition  of  the  authority  of  the  United  States 
shall  have  continued  in  the  territory  of  said  Islands  not  in- 
habited by  Moros  or  other  non-Christian  tribes  and  such 
facts  shall  have  been  certified  to  the  President  by  the  Phil- 
ippine Commission,  the  President  upon  being  satisfied 
thereof  shall  direct  said  Commission  to  call,  and  the  Com- 
mission shall  caD,  a  general  election  for  the  choice  of  dele- 
gates to  a  popular  assembly  of  the  people  of  said  Territory 
in  the  Philippine  Islands,  which  shall  be  known  as  the 
Philippine  Assembly.  After  said  Assembly  shall  have  con- 
vened and  organized,  all  the  legislative  power  heretofore 
conferred  on  the  Philippine  Commission  in  all  that  part  of 
said  Islands  not  inhabited  by  Moros  or  other  non-Christian 
tribes  shall  be  vested  in  a  legislature  consisting  of  two 
houses — the  Philippine  Commission  and  the  Philippine  As- 
sembly. Said  Assembly  shall  consist  of  not  less  than  fifty 
nor  more  than  one  hundred  members,  to  be  apportioned  by 
said  Commission  among  the  provinces  as  nearly  as  practica- 
ble according  to  population:  Provided,  That  no  province 
shall  have  less  than  one  member:  And  provided  further, 
That  provinces  entitled  by  population  to  more  than  one 
member  may  be  divided  into  such  convenient  districts  as  the 
said  Commission  may  deem  best. 

Public  notice  of  such  division  shall  be  given  at  least  ninety 
days  prior  to  such  election,  and  the  elections  shall  be  held 
under  rules  and  regulations  to  be  prescribed  by  law.  The 
qualification  of  electors  in  such  election  shall  be  the  same 
as  is  now  provided  by  law  in  case  of  electors  in  municipal 
elections.  The  members  of  Assembly  shall  hold  office  for 
two  years  from  the  first  day  of  January  next  following  their 
election,  and  their  successors  shall  be  chosen  by  the  people 
every  second  year  thereafter.  No  person  shall  be  eligible 
to  such  election  who  is  not  a  qualified  elector  of  the  election 


THE  PHILIPPINE  ASSEMBLY  35 

district  in  which  he  may  be  chosen,  owing  allegiance  to  the 
United  States,  and  twenty-five  years  of  age. 

The  Legislature  shall  hold  annual  sessions,  commencing 
on  the  first  Monday  of  February  in  each  year  and  continuing 
not  exceeding  ninety  days  thereafter  (Sundays  and  holidays 
not  included)  :  Provided,  That  the  first  meeting  of  the  Legis- 
lature shall  be  held  upon  the  call  of  the  Governor  within 
ninety  days  after  the  first  election:  And  provided  further, 
That  if  at  the  termination  of  any  session  the  appropriations 
necessary  for  the  support  of  the  government  shall  not  have 
been  made,  an  amount  equal  to  the  sums  appropriated  in 
the  last  appropriation  bills  for  such  purposes  shall  be 
deemed  to  be  appropriated;  and  until  the  Legislature  shall 
act  in  such  behalf  the  Treasurer  may,  with  the  advice  of 
the  Governor,  make  the  payments  necessary  for  the  purposes 
aforesaid. 

The  Legislature  may  be  called  in  special  session  at  any 
time  by  the  Civil  Governor  for  general  legislation,  or  for 
action  on  such  specific  subjects  as  he  may  designate.  No 
special  session  shall  continue  longer  than  thirty  days,  ex- 
clusive of  Sundays. 

The  Assembly  shall  be  the  judge  of  the  elections,  returns, 
and  qualifications  of  its  members.  A  majority  shall  con- 
stitute a  quorum  to  do  business,  but  a  smaller  number  may 
adjourn  from  day  to  day  and  may  be  authorized  to  compel 
the  attendance  of  absent  members.  It  shall  choose  its 
Speaker  and  other  officers,  and  the  salaries  of  its  members 
and  officers  shall  be  fixed  by  law.  It  may  determine  the 
rule  of  its  proceedings,  punish  its  members  for  disorderly 
behavior,  and  with  the  concurrence  of  two-thirds  expel  a 
member.  It  shall  keep  a  journal  of  its  proceedings,  which 
shall  be  published,  and  the  yeas  and  nays  of  the  members 
on  any  question  shall,  on  the  demand  of  one-fifth  of  those 
present,  be  entered  on  the  journal. 

I  can  well  remember  when  that  section  was  drafted  in 
the  private  office  of  Mr.  Root  in  his  house  in  Washing- 
ton. Only  he  and  I  were  present.  I  urged  the  wisdom 
of  the  concession  and  he  yielded  to  my  arguments  and 
the  section  as  then  drafted  differed  but  little  from  the 


36  THE  INAUGURATION  OF 

form  it  has  to-day.  It  was  embodied  in  a  bill  presented 
to  the  House  and  passed  by  the  House,  was  considered 
by  the  Senate,  was  stricken  out  in  the  Senate,  and  was 
only  restored  after  a  conference,  the  Senators  in  the 
conference  consenting  to  its  insertion  with  great  reluc- 
tance. I  had  urged  its  adoption  upon  both  committees, 
and,  as  the  then  Governor  of  the  Islands,  had  to  assume 
a  responsibility  as  guarantor  in  respect  to  it  which 
I  have  never  sought  to  disavow.  I  believe  that  it  is  a 
step  and  a  logical  step  in  the  carrying  out  of  the 
policy  announced  by  President  McKinley  and  that  it  is 
not  too  radical  in  the  interest  of  the  people  of  the 
Philippine  Islands.  Its  effect  is  to  give  to  a  representa- 
tive body  of  the  Filipinos  a  right  to  initiate  legislation, 
to  modify,  amend,  shape  or  defeat  legislation  proposed 
by  the  Commission.  The  power  to  obstruct  by  withhold- 
ing appropriations  is  taken  away  from  the  Assembly, 
because  if  there  is  not  an  agreement  as  to  appropriations 
between  the  Commission  and  the  Assembly,  then  the  ap- 
propriations of  the  previous  year  will  be  continued ;  but 
the  power  with  this  exception,  absolutely  to  veto  all 
legislation  and  initiate  and  shape  proposed  laws,  is  a 
most  substantial  one.  The  concurrence  of  the  Assembly 
in  useful  legislation  can  not  but  command  popular  sup- 
port for  its  enforcement ;  the  discussion  in  the  Assembly 
and  its  attitude  must  be  informing  to  the  executive  and 
to  the  other  branch  of  the  legislature,  the  Commission,  of 
what  are  the  desires  of  the  people.  The  discharge  of  the 
functions  of  the  Assembly  must  give  to  the  chosen  rep- 
resentatives of  the  Philippine  electorate  a  most  valuable 
education  in  the  responsibilities  and  difficulties  of  practi- 
cal government.  It  will  put  them  where  they  must  in- 
vestigate not  only  the  theoretical  wisdom  of  proposed 
measures,  but   also  the  question  whether  they   can  be 


THE  PHILIPPINE  ASSEMBLY  37 

practically  enforced,  and  whether,  where  expense  is 
involved,  they  are  of  sufficient  value  to  justify  the  im- 
position of  a  financial  burden  upon  the  people  to  carry 
them  out.  It  will  bring  the  members  of  the  Assembly  as 
representatives  of  the  people  into  close  relations  with  the 
Executive,  who  will  be  most  anxious  to  preserve  a  har- 
mony essential  to  efficient  government  and  progressive, 
useful  measures  of  reform. 

Critics  who  do  not  sympathize  with  our  Philippine 
policy,  together  with  those  who  were  reluctant  to  grant 
this  measure  of  a  legislative  assembly  to  the  Philippine 
people  at  this  time,  have  not  been  slow  to  comment  on 
the  result  of  the  election  as  an  indication  that  we  are 
going  too  fast.  I  differ  entirely  from  the  view  of  these 
critics  as  to  the  result  of  this  election  and  the  inferences 
to  be  drawn  from  it. 

The  small  total  vote  as  compared  with  the  probable 
number  of  the  total  electorate  shows  that  a  considerable 
majority  of  those  entitled  to  vote  did  not  exercise  the 
privilege.  This  indicates  either  an  indifference  or  a 
timidity  that  we  would  not  find  in  a  people  more  used  to 
the  wielding  of  political  power;  but  it  affords  no  reason 
for  supposing  that  as  the  Assembly  proves  its  usefulness 
and  important  power,  the  ratio  of  votes  to  the  total 
electorate  will  not  rapidly  increase. 

The  election  was  held  without  disturbance.  In  many 
districts  there  were  bitter  controversies,  but  the  com- 
plaints of  fraud,  violence  or  bribery  are  insignificant. 
Although  the  Government  was  supposed  to  favor  one 
party,  and  was  subject  to  much  criticism  in  the  cam- 
paign, no  one  has  been  heard  to  say  that  the  power 
of  the  Executive  was  exerted  in  any  way  improperly 
to  influence  the  election.  This  furnishes  a  good  object 
lesson. 


38  THE  INAUGURATION  OF 

A  popular  majority  of  those  who  exercise  the  fran- 
chise ha  ye  voted  for  representatives  announcing  a  desire 
for  the  immediate  separation  of  the  Islands  from  the 
United  States.  This  majority  is  a  small  one  when  the 
returns  are  carefully  considered  and  is  much  less  than 
the  ratio  between  the  party  representatives  in  the  As- 
sembly would  lead  one  to  suppose.  However,  assuming 
a  decided  majority  for  immediate  independence,  the  re- 
sult is  one  which  I  thought  possible  even  while  I  was 
urging  the  creation  of  the  Assembly.  It  is  not  a  disap- 
pointment. If  it  indicated  that  a  majority  of  the  rep- 
resentatives elected  by  the  people  were  a  body  of  irre- 
concilables  determined  to  do  nothing  but  obstruct  the 
present  government,  it  would  indeed  be  discouraging; 
but  I  am  confident  from  what  I  know  and  hear  of  the 
gentlemen  who  have  been  elected  that  while  many  of 
them  differ  with  me  as  to  the  time  in  which  the  people 
of  the  Islands  will  become  fit  for  complete  self-govern- 
ment, most  of  them  have  an  earnest  desire  that  this  gov- 
ernment shall  be  carried  on  in  the  interests  of  the  people 
of  the  Philippines  and  for  their  benefit,  and  shall  be 
made  for  that  purpose  as  effective  as  possible.  They 
are  thus  generally  conservative.  Those  whose  sole  aim  is 
to  hold  up  the  government  to  execration,  to  win  away 
the  sympathy  of  the  people  in  order  to  promote  dis- 
turbance and  violence,  have  no  proper  place  in  this 
Assembly.  Had  the  Filipino  people  sent  such  a  ma- 
jority, then  I  should  have  to  admit  that  the  granting  of 
the  Assembly  was  a  mistake  and  that  Congress  must 
abolish  it. 

It  has  been  reported  in  the  Islands  that  I  was  com- 
ing here  for  the  purpose  of  expressing,  in  bitter  and 
threatening  words,  my  disappointment  at  the  result  of 
the  election.     Nothing  could  be  further  from  my  pur- 


THE  PHILIPPINE  ASSEMBLY  39 

pose,  nothing  could  be  less  truly  descriptive  of  my 
condition  of  mind.  I  am  here,  filled  with  a  spirit  of 
friendship  and  encouragement  for  these  members,  who 
now  enter  upon  a  new  field  in  which  they  have  much  to 
learn,  but  where  everything  can  be  learned  and  this  duty 
most  efficiently  discharged  if  they  are  led  by  an  earnest 
desire  to  assist  and  guide  the  government  in  aiding  the 
people.  I  have  no  right  to  appeal  to  the  membership  of 
this  Assembly  to  conduct  themselves  in  the  discharge  of 
their  high  duties  in  a  manner  to  vindicate  me  in  the  re- 
sponsibility I  assumed  in  urging  Congress  to  establish 
this  Assembly,  because  they  should  find  a  stronger  reason 
for  so  doing  in  their  sworn  duty ;  but  it  is  not  inap- 
propriate for  me  to  touch  on  this  personal  feature  of  the 
situation,  because  my  attitude  has  been  misconstrued 
and  my  sympathetic  interest  in,  and  hope  for,  the  suc- 
cess and  usefulness  of  this  National  Assembly  have  not 
been  properly  stated. 

I  venture  to  point  out  a  number  of  tilings  that  you 
will  learn  in  the  course  of  your  legislative  experience. 
One  is  that  the  real  object  of  a  legislature  is  to  formu- 
late specific  laws  to  accomplish  specific  purposes  and  re- 
forms and  to  suppress  specific  evils ;  that  he  makes  a 
useful  speech  who  studies  the  question  which  he  discusses 
and  acquires  and  imparts  practical  information  by 
which  the  remedies  offered  can  be  seen  to  be  applicable 
to  the  evil  complained  of;  that  the  office  of  a  legislator 
for  a  great  country  like  this  is  one  that  can  be  dis- 
charged conscientiously  only  by  the  use  of  great  labor, 
careful,  painstaking  investigation  and  hard  work  in  the 
preparation  of  proposed  measures.  One  of  the  most 
necessary  traits  in  a  successful  legislator  or  executive 
is  patience.  Where  the  sudden  change  in  that  which  is 
regarded  as  a  wrong  system  may  paralyze  a  necessary 


40  THE  INAUGURATION  OF 

arm  of  the  government,  ways  and  means  must  be  devised 
to  bring  about  the  change  gradually.  There  will  be  a 
temptation  to  take  up  measures  which  will  invite  the 
support  of  popular  prejudice  rather  than  measures 
which  will  really  accomplish  good  for  the  body  politic. 
Such  a  temptation  exists  in  older  legislative  bodies  than 
this,  and  we  can  not  hope  that  it  will  be  absent  from 
here;  but,  in  the  end,  the  man  who  exerts  the  most  in- 
fluence in  this  body  and  among  the  people  will  be  the 
man  who  devotes  most  conscientiously  his  time  to  acquir- 
ing the  information  upon  which  legislation  should  be 
based  and  in  explaining  it  to  his  colleagues  and  his 
people.  The  man  who  is  seeking  to  put  his  adversary  or 
the  government  in  an  embarrassing  situation  may  win 
temporary  triumph;  but  the  man  who  himself  feels  re- 
sponsibility of  government,  and  who,  while  not  conceal- 
ing or  failing  to  state  the  evils  which  he  considers  to 
exist  in  the  government,  is  using  every  effort  to  reform 
those  evils,  will  ultimately  be  regarded  as  the  benefactor 
of  his  country. 

I  have  not  the  time  and  doubtless  not  the  information 
which  would  justify  me  in  pointing  out  to  the  Assembly 
the  various  subjects-matter  to  which  they  may  profitably 
devote  their  attention  with  a  view  to  the  formulation  of 
useful  legislation.  They  will  properly  feel  called  upon 
to  devote  their  attention  to  public  economy  in  the  matter 
of  the  numerous  governmental  bureaus  which  have  been 
made  the  subject  of  criticism.  It  is  quite  possible  that 
they  may  find  in  their  investigations  into  these  matters 
reasons  for  cutting  off  officers  and  bureaus,  but  I  sin- 
cerely hope  that  no  such  effort  will  be  made  until  a  full 
investigation  is  had  into  the  utility  of  the  functions 
which  the  bureau  performs  and  the  possibility  of  dis- 
pensing with  them.     I  can  remember  that  while  I  was 


THE  PHILIPPINE  ASSEMBLY  41 

Governor  there  was  much  outcry  against  the  extrava- 
gance of  maintaining  certain  bureaus  which  in  subse- 
quent crises  in  the  public  welfare  proved  their  great 
usefulness  beyond  cavil.  Of  course  we  shall  encounter 
in  this  investigation  and  discussion  a  radical  difference 
between  legislators  and  others  as  to  the  function  which 
a  government  in  these  Islands  ought  to  perform.  It  is 
entirely  easy  to  run  an  economical  government  if  all 
that  you  do  is  to  maintain  order  and  if  no  steps  are  taken 
to  promote  health,  to  promote  education  and  to  pro- 
mote the  general  welfare  of  the  inhabitants.  It  is  of 
course  the  object  of  the  person  charged  with  the  duty 
of  governing  a  country  to  reach  the  golden  mean — 
that  is,  to  make  governmental  provisions  for  the  welfare 
of  the  people  without  imposing  too  great  a  tax  burden 
for  the  purpose.  The  taxes  in  this  country  are  imposed 
partly  by  the  legislature  and  partly  by  Congress.  The 
former  will  constantly  have  your  attention.  In  so  far 
as  the  welfare  of  the  country  is  affected  by  the  latter, 
to  wit,  the  customs  duties,  and  can  be  improved  by  a 
change  of  them,  it  would  be  wise  for  the  Legislature  to 
devote  much  time  and  thought  to  recommendations  to 
Congress  as  to  how  they  should  be  changed,  for  I  doubt 
not  that  Congress  will  be  willing  and  anxious  to  take 
such  steps  as  may  commend  themselves  to  the  people 
of  the  Islands  in  the  matter  of  adjustment  of  duties, 
having  regard  to  the  raising  of  sufficient  revenue  on  the 
one  hand  and  to  as  little  interference  with  useful  free- 
dom of  trade  as  possible  on  the  other. 

As  you  shall  conduct  your  proceedings  and  shape 
your  legislation  on  patriotic,  intelligent,  conservative 
and  useful  lines,  you  will  show  more  emphatically  than  in 
any  other  way  your  right  and  capacity  to  take  part  in 
the  government  and  the  wisdom  of  granting  to  your 


42  INAUGURATION  OF  PHILIPPINE  ASSEMBLY 

Assembly,  and  to  the  people  that  elected  you,  more 
power.  There  are  still  many  possible  intervals  or  steps 
between  the  power  you  now  exercise  and  complete  auton- 
omy. Will  this  Assembly  and  its  successors  manifest 
such  an  interest  in  the  welfare  of  the  people  and  such 
clear-headed  comprehension  of  their  sworn  duty  as  to 
call  for  a  greater  extension  of  political  power  to  this 
body  and  to  the  people  whose  representative  it  is?  Or 
shall  it,  by  neglect,  obstruction  and  absence  of  useful 
service,  make  it  necessary  to  take  away  its  existing 
powers  on  the  ground  that  they  have  been  prematurely 
granted?  Upon  you  falls  this  heavy  responsibility.  I 
am  assured  that  you  will  meet  it  with  earnestness,  cour- 
age and  credit. 

In  closing,  I  can  only  renew  my  congratulations  upon 
the  auspicious  beginning  of  your  legislative  life  in  a  fair 
election,  and  to  express  to  you  my  heartfelt  sympathy  in 
the  work  which  you  are  about  to  undertake,  and  my 
confidence  that  you  will  justify  in  what  you  do,  and  do 
not  do,  the  recommendations  of  those  who  are  respon- 
sible for  that  section  in  the  organic  act  that  has  given 
life  to  this  Assembly. 


CHINA    AND    HER    RELATIONS    WITH    THE 
UNITED  STATES 

DELIVERED  AT  A  BANQUET   TENDERED   BY  THE  AMERICAN 
ASSOCIATION   OF   CHINA,   SHANGHAI,   OCTOBER    8,  1907 

Mr.  Chairman  and  Gentlemen  :  For  the  courtesy  and 
hospitality  evidenced  by  this  beautiful  banquet,  I  wish 
to  express  to  you  my  grateful  acknowledgment.  It  is 
a  great  opportunity  and  pleasure  to  meet  the  prominent 
citizens  and  residents  of  this  great  city.  Shanghai  is 
the  business  centre  and  in  some  respects  the  political 
centre  of  the  Empire  of  China. 

On  my  way  to  the  Philippines,  as  a  representative  of 
the  President  of  the  United  States,  to  signify  the  im- 
portance which  he  attaches  to  another  step  in  the  exten- 
sion of  popular  self-government  in  those  Islands,  I  am 
here  only  by  the  way  as  a  traveler,  accredited  with  no 
official  authority  or  duty  or  message  in  respect  of  China. 
What  I  am  about  to  say  in  respect  to  China,  therefore, 
is  said  as  an  American  citizen  and  not  as  a  representa- 
tive of  the  American  Government. 

ATTITUDE    TOWARDS    THE    PHILIPPINES 

One  word  in  respect  to  the  Philippines  before  I  come 
to  America's  relation  to  China.  Americans  interested 
in  Oriental  and  Chinese  trade  naturally  look  to  the 
Philippine  policy  of  the  Government  as  having  a  bearing 
upon  the  attitude  of  America  toward  the  Orient  in  gen- 
eral. Reports  have  been  circulated  with  an  appearance 
of  authority  throughout  this  part  of  the  world  that  the 
United  States  intends  to  sell  the  Philippines  to  Japan  or 
some  other  country.     Upon  that  point  I  do  not  hesitate 

43 


44  CHINA  AND  HER  RELATIONS 

to  express  a  decided  opinion.  The  Philippines  came  to 
the  United  States  by  chance,  but  that  Government  as- 
sumed a  duty  with  respect  to  them  and  entered  into  an 
implied  obligation  affecting  them,  with  the  people  of  the 
Philippines,  of  which  it  would  be  the  grossest  violation 
to  sell  the  Islands  to  any  other  Power.  The  only  alter- 
natives which  the  United  States  can  in  honor  pursue 
with  respect  to  the  Philippines  are  either  permanently 
to  retain  them,  maintaining  therein  a  stable  government 
in  which  the  rights  of  the  humblest  citizen  shall  be 
preserved,  or,  after  having  fitted  the  people  for  self- 
government,  to  turn  the  Islands  over  to  them  for  the 
continuance  by  them  of  a  government  of  the  same  char- 
acter. It  is  enough  to  say  here  that  there  is  not  the 
slightest  danger  of  a  sudden  cessation  of  the  present 
relation  of  the  United  States  to  the  Philippines,  such 
as  would  be  involved  in  a  sale  of  those  Islands,  and  that 
for  our  present  purpose  the  attitude  of  the  United 
States  toward  China  must  be  regarded  not  alone  as  a 
country  interested  in  the  trade  of  China,  but  also  as  a 
Power  owning  territory  in  China's  immediate  neighbor- 
hood. 

THE  POLICY  OF  THE  OPEN  DOOR 

The  policy  of  the  Government  of  the  United  States 
has  been  authoritatively  stated  to  be  that  of  seeking  the 
permanent  safety  and  peace  of  China,  the  preservation 
of  Chinese  territorial  and  administrative  entity,  the 
protection  of  all  rights  guaranteed  by  her  to  friendly 
Powers  by  treaty  and  international  law,  and,  as  a  safe- 
guard for  the  world,  the  principle  of  equal  and  im- 
partial trade  with  all  parts  of  the  Chinese  Empire. 
This  was  the  policy  which  John  Hay  made  famous  as 
that  of  "  the  open  door."    By  written  memorandum,  all 


WITH  THE  UNITED  STATES  45 

the  great  Powers  interested  in  the  trade  of  China  have 
subscribed  to  its  wisdom  and  declared  their  adherence 
to  it.  The  Government  of  the  United  States  has  not 
deviated  in  the  slightest  way  from  its  attitude  in  this 
regard  since  the  policy  was  announced  in  1900. 

I  am  advised  by  Mr.  Millard,  who  has  written  much 
and  well  on  the  Far  East  and  has  given  close  attention 
to  the  statistics  of  the  trade  between  China  and  the 
various  countries  of  the  world,  that  the  trade,  both  ex- 
port and  import,  between  China  and  the  United  States 
is  second  only  to  that  of  Great  Britain.  He  says  there 
is  much  difficulty  in  fixing  the  exact  amount  of  trade 
because  of  the  long-established  custom  of  treating  every 
piece  of  merchandise  that  comes  from  Hongkong  as  an 
importation  from  British  territory.  It  is  certain, 
therefore,  that  the  American  Chinese  trade  is  sufficiently 
great  to  require  the  Government  of  the  United  States 
to  take  every  legitimate  means  to  protect  it  against 
diminution  or  injury  by  the  political  preference  of  any 
of  its  competitors.  It  cannot,  of  course,  complain  of 
loss  of  trade  effected  by  the  use  of  greater  enterprise, 
greater  ingenuity,  greater  attention  to  the  demands  of 
the  Chinese  market  and  greater  business  acumen  by  its 
competitor,  but  it  would  have  the  right  to  protest 
against  exclusion  from  Chinese  trade  by  a  departure 
from  the  policy  of  the  open  door.  The  acquiescence  in 
this  policy  by  all  interested  nations  was  so  unhesitating 
and  emphatic  that  it  is  hardly  worth  while  to  speculate 
as  to  the  probable  attitude  of  the  United  States  were 
its  merchants'  interests  injured  by  a  violation  of  it. 

How  far  the  United  States  would  go  in  the  protec- 
tion of  its  Chinese  trade  no  one  of  course  could  say. 
This  much  is  clear,  however,  that  the  merchants  of  the 
United  States  are  being  roused  to  the  importance  of 


46  CHINA  AND  HER  RELATIONS 

their  Chinese  export  trade,  that  they  would  view  politi- 
cal obstacles  to  its  expansion  with  deep  concern,  and 
that  this  feeling  of  theirs  would  be  likely  to  find  ex- 
pression in  the  attitude  of  the  American  government. 
Domestic  business  in  the  United  States  has  expanded  so 
enormously,  and  has  resulted  in  such  great  profits,  as 
to  prevent  American  business  men  from  giving  to  the 
foreign  trade  that  attention  which  it  deserves  and  which 
they  certainly  would  give,  but  for  more  profitable  busi- 
ness at  home.  As  the  population  of  the  United  States 
increases,  as  its  territory  fills  and  its  vast  manufacturing 
and  agricultural  interests  become  greater,  its  interest 
in  foreign  trade  is  certain  to  increase.  The  manufac- 
turers now  take  little  care  to  pack  their  goods  or  to  give 
them  the  sizes  as  desired  by  Chinese  purchasers,  but  this 
stiff-necked  lack  of  business  sense  is  disappearing.  We 
shall  soon  find  the  same  zeal  and  the  same  intense  interest 
on  their  part  to  induce  purchasers  in  foreign  markets 
that  now  characterize  the  manufacturers  of  other  nations 
whose  home  business  is  not  so  absorbing  as  that  of  the 
manufacturers  of  the  United  States.  While  we  have 
been  slow  in  rousing  ourselves  to  the  importance  of  a 
trade  which  has  grown  without  government  encourage- 
ment and  almost  without  business  effort  to  its  present 
important  proportions,  I  feel  sure  that  in  the  future 
there  will  be  no  reason  to  complain  of  seeming  govern- 
ment indifference  to  it. 

DEVELOPMENT   OF   THE   EMPIRE 

The  United  States  and  others  who  favor  the  open 
door  policy  sincerely  will,  if  they  are  wise,  not  only 
welcome,  but  will  encourage  this  great  Chinese  Empire 
to  take  long  steps  in  administrative  and  governmental 
reforms,  and  in  the  development  of  her  natural  resources 


WITH  THE  UNITED  STATES  47 

and  the  improvement  of  the  welfare  of  her  people.  In 
this  way  she  will  add  great  strength  to  her  position  as  a 
self-respecting  Government,  may  resist  all  possible  for- 
eign aggression  seeking  undue,  exclusive  or  proprietary 
privileges  in  her  territory,  and  without  foreign  aid  can 
enforce  the  open  door  policy  of  equal  opportunity  to  all. 
I  am  not  one  of  those  who  view  with  alarm  the  effect  of 
the  growth  of  China  with  her  teeming  millions  into  a 
great  industrial  empire.  I  believe  that  this,  instead  of 
injuring  foreign  trade  with  China,  would  greatly  in- 
crease it,  and  while  it  might  change  its  character  in 
some  respects,  it  would  not  diminish  its  profit.  A  trade 
which  depends  for  its  profit  on  the  backwardness  of  a 
people  in  developing  their  own  resources  and  upon  their 
inability  to  value  at  the  proper  relative  prices  that 
which  they  have  to  sell  and  that  which  they  have  to 
buy,  is  not  one  which  can  be  counted  upon  as  stable  or 
permanent. 

MONETARY    REFORM 

I  may  stop  a  moment  in  this  connection  to  say  that 
the  Monetary  Commission  headed  by  Professor  Jenks, 
which  was  sent  at  the  expense  of  the  United  States  to 
adopt  a  gold  standard,  sought  to  effect  a  reform  that 
would  have  inured  greatly  to  the  benefit  of  the  Chinese 
people.  The  example  of  Japan  and  the  Philippines 
justifies  this  statement.  While  the  recent  rise  in  the 
price  of  silver  has  reduced  somewhat  the  difficulty  of 
the  two  standards,  the  elimination  from  business  of  the 
gambling  element  involved  in  the  fluctuations  of  ex- 
change due  to  the  difference  between  the  gold  and  the 
silver  standard  would  be  ultimately  of  great  benefit  to 
the  merchants  and  the  common  people  of  China,  and  to 
the  stability  and  fairness  of  Oriental  business.     I  am 


48  CHINA  AND  HER  RELATIONS 

sincerely  hopeful  that  it  will  not  be  many  years  before 
such  a  reform  is  brought  about. 

CHINA  FOR,  THE   CHINESE 

For  the  reasons  I  have  given  it  does  not  seem  to  me 
that  the  cry  of  "  China  for  the  Chinese "  should 
frighten  anyone.  All  that  is  meant  by  that  is  that  China 
should  devote  her  energies  to  the  development  of  her 
immense  resources,  to  her  industrious  people  and  to  the 
enlargement  of  her  trade  and  to  the  administrative  re- 
form of  the  Empire  as  a  great  national  Government. 
Changes  of  this  kind  could  only  increase  our  trade  with 
her.  Our  greatest  export  trade  is  with  the  countries 
most  advanced  in  business  methods  and  in  the  develop- 
ment of  their  particular  resources.  In  the  Philippines, 
we  have  learned  that  the  policy  which  is  best  for  the 
Filipinos  is  best  in  the  long  run  for  the  countries  which 
would  do  business  with  the  Islands. 

REFORM    IN    ADMINISTRATION    IN    CHINA 

It  is  a  pleasure  to  know  that  the  education  of  Chinese 
in  America  has  had  much  to  do  with  the  present  steps 
toward  reform  begun  by  the  Government  in  China.  It 
is  not  to  be  expected  that  these  reforms  shall  be  radical 
or  sudden.  It  would  be  unwise  if  they  were  so.  A 
nation  of  the  conservative  traditions  of  China  must 
accept  changes  gradually,  but  it  is  a  pleasure  to  know 
and  to  say  that  in  every  improvement  which  she  aims  at, 
she  has  the  deep  sympathy  of  America,  and  that  there 
never  can  be  any  jealousy  or  fear  on  the  part  of  the 
United  States  due  to  China's  industrial  or  political 
development,  provided  always  that  it  is  directed  along 
the  lines  of  peaceful  prosperity  and  the  main- 
tenance of  law  and  order  and  the  rights  of  the  individ- 


WITH  THE  UNITED  STATES  49 

ual,  native  or  foreign.  She  has  no  territory  we  long 
for,  and  can  have  no  prosperity  which  we  would  grudge 
her,  and  no  political  power  and  independence  as  an  Em- 
pire, justly  exercised,  which  we  would  resent.  With  her 
enormous  resources  and  with  her  industrious  people  the 
possibilities  of  her  future  can  not  be  overstated. 

THE  BOYCOTT  ENDED 

It  is  pleasant  to  note  a  great  improvement  in  the  last 
two  years  in  the  relations  between  the  United  States  and 
China.  In  the  first  place,  through  the  earnest  efforts 
of  President  Roosevelt,  the  administration  of  the 
Chinese  immigration  laws  of  the  United  States  has  been 
made  much  more  considerate.  The  inquisitorial  harsh- 
ness to  which  classes  proper^'  admissible  to  the  United 
States  under  the  treaty  bet  Q  ^en  the  two  countries  were 
at  one  time  subjected,  has  been  entirely  mitigated  with- 
out in  any  way  impairing  the  effectiveness  of  the  law. 
The  boycott,  which  was  organized  ostensibly  on  the 
ground  of  such  harshness  of  administration,  proved  in 
the  end  to  be  a  double-edged  knife,  which  injured 
Chinese  even  more  than  Americans,  and  other  foreign 
countries  quite  as  much.  Happily  that  has  now  become 
a  closed  incident,  a  past  episode. 

RETURN    OF   INDEMNITY 

Again,  the  United  States  has  exhibited  its  wish  to  do 
full  justice  to  China  by  a  return  or  waiver  of  the  in- 
demnity awarded  to  it  for  injuries  and  expenses  grow- 
ing out  of  the  Boxer  trouble.  It  has  been  said  that 
we  have  done  only  what  we  ought  to  do.  This  may  be 
so,  but  a  nice  sense  of  international  obligation  is  not  so 
universal  that  it  may  not  justly  increase  the  friendly 
feeling  between  the  parties  to  the  transaction. 


50  CHINA  AND  HER  RELATIONS 

REFORM    OF   AMERICAN    CONSULAR    SERVICE 

With  the  full  approval  of  President  Roosevelt,  Mr. 
Root  secured  the  legislation  needed  to  improve  our  Con- 
sular service  and  to  place  it  on  a  merit  basis.  I  do  not 
think  it  too  much  to  say  that  the  Consular  representa- 
tives in  China  within  the  last  decade  have  not  been  up  to 
the  standard  which  the  importance  of  the  business  inter- 
ests of  the  United  States  in  China  demanded.  Aware 
of  this,  the  administration  at  Washington  has  within 
the  last  three  years  given  special  attention  to  the  selec- 
tion of  Consuls  in  China.  This  was  made  evident  in  the 
selection  of  both  Mr.  Rodgers  and  Mr.  Denby  as  Con- 
suls-General at  Shanghai.  It  is  a  new  sensation  for  an 
American  to  come  to  a  Chinese  city  and  find  as  his 
Consular  representative  one  who  knows  the  Chinese 
language  and  who  understands  the  Chinese  Empire  as 
few  Chinese  understand  it.  I  congratulate  you  citizens 
of  the  United  States  on  having  such  a  representative  of 
your  interests  in  this  great  commercial  community  as 
Mr.  Denby. 

ESTABLISHMENT  OF  AN  AMERICAN  COURT. APPROVAL  OF 

ITS   WORK 

Finally,  another  great  step  has  been  taken  by  the 
Government  of  the  United  States  to  improve  its  rela- 
tions to  China.  Many  years  ago  the  Chinese  Empire 
granted  the  right  to  citizens  of  the  United  States  to 
reside  in  so-called  concessions  within  the  borders  of  the 
Chinese  Empire,  and  there  enjoy  the  security  of  living 
under  the  government  and  administration  of  law  by 
officers  of  the  United  States.  This  extra-territoriality 
was  chiefly  important  in  securing  an  administration  of 
justice  in  accordance  with  the  principles  and  laws  ob- 


WITH  THE  UNITED  STATES  51 

taining  in  the  United  States.  It  imposed  an  impera- 
tive obligation  upon  the  United  States  to  see  to  it  that 
the  justice  thus  administered  by  the  officers  whom  it 
vested  with  judicial  powers  should  be  of  the  highest  and 
most  elevating  character.  I  regret  to  say  that  this 
obligation  for  many  years  did  not  receive  the  attention 
and  care  that  it  ought  to  have  had ;  but  in  the  last  Con- 
gress, at  the  instance  of  Secretary  Root,  under  the 
guidance  of  Mr.  Denby,  then  the  Chief  Clerk  of  the 
State  Department,  and  now  your  Consul-General  at 
Shanghai,  with  the  able  assistance  of  Mr.  Denby's 
brother,  a  Member  of  Congress  from  Michigan,  and  of 
Senator  Spooner  of  Wisconsin,  a  law  was  passed  which 
properly  recognizes  the  dignity  and  importance  of  the 
power  conferred  by  the  Chinese  treaty  upon  the  Govern- 
ment of  the  United  States  to  administer  justice  in  re- 
spect of  citizens  of  the  United  States  commorant  in 
China  by  creation  of  a  U.  S.  Circuit  Court  for  China. 
Our  Government  was  fortunate  in  the  selection  of  a 
gentleman  as  the  first  judge  of  that  Court  who  had  four 
years'  experience  in  the  Orient  as  Attorney-General  of 
the  Philippines,  and  who  came  to  Shanghai  with  an  in- 
timate knowledge  of  the  method  of  uniting,  in  one  ad- 
ministration, the  principles  of  the  common  law  of  the 
United  States  with  the  traditions  and  conditions  of  a 
foreign  country.  His  policy  in  raising  high  the  stand- 
ard of  admission  to  the  bar  and  in  promoting  vigorous 
prosecutions  of  American  violators  of  law  and  the  con- 
sequent elimination  from  this  community  of  undesir- 
able characters  who  have  brought  disgrace  upon  the 
name  of  Americans  in  the  cities  of  China,  can  not  but 
commend  itself  to  everyone  interested  in  the  good  name 
of  the  United  States  among  the  Chinese  people  and 
with  our  brethren  of  other  countries  who  live  in  China. 


52  CHINA  AND  HER  RELATIONS 

It  involves  no  small  amount  of  courage  and  a  great  deal 
of  common  sense  to  deal  with  evils  of  this  character  and 
to  rid  the  community  of  them.  Interests  which  have 
fattened  on  abuses  can  not  be  readily  disturbed  without 
making  a  fight  for  their  lives,  and  one  who  undertakes 
the  work  of  cleansing  and  purifying  must  expect  to 
meet  resistance  in  libel  and  slander  and  the  stirring 
up  of  official  opposition  based  on  misinformation  and 
evil  report.  I  am  glad  to  think  that  the  Circuit  Court 
of  China  has  passed  through  its  trial  and  that  the  satis- 
faction which  its  policy  has  brought  to  the  American 
and  foreign  communities  in  China  and  to  the  Chinese 
people  will  not  be  unknown  to  the  Administration  at 
Washington,  at  whose  instance  this  Court  was  first 
established. 

NEED    OF    MORE    COMPLETE    BODY    OF    LAWS    FOR    AMERI- 
CANS  IN    CHINA 

I  have  read  Judge  Wilfley's  opinions  both  in  civil  and 
in  criminal  matters.  He  has  worked  hard  and  well. 
He  has  made  it  plain  that  some  additional  legislation  by 
Congress  is  necessary  to  lay  down  a  few  more  general 
principles  of  law  which  are  to  govern  in  the  extra- 
territorial jurisdiction  of  the  Court  in  China.  I  sin- 
cerely hope  and  believe  that  the  establishment  of  this 
Court  will  make  much  for  the  carrying  out  of  exact 
justice  in  the  controversies  that  arise  in  the  business 
between  Chinese  and  Americans.  There  is  nothing  for 
which  the  Oriental  has  a  higher  admiration  than  for 
exact  justice,  possibly  because  he  is  familiar  with  the 
enormous  difficulty  there  is  in  attaining  such  an  ideal. 
If  this  Court  shall  lead  the  Chinese  to  believe,  as  it 
ought  to  do,  and  will  do,  that  the  rights  of  a  Chinaman 
are  exactly  as  secure  when  considered  by  this  tribunal, 


WITH  THE  UNITED  STATES  53 

as  the  rights  of  an  American,  and  that  there  is  no 
looking  down  upon  a  Chinese  because  he  is  a  Chinese 
and  no  disregard  of  his  business  rights  because  he  is  an 
Oriental,  it  will  make  greatly  for  the  better  relations 
between  the  two  countries. 

FEDERAL  BUILDINGS   FOR   SHANGHAI 

And  now  what  else  is  needed?  It  goes  without  say- 
ing. What  you  need  is  a  great  government  building 
here,  to  be  built  by  the  expenditure  of  a  very  large 
sum  of  money,  so  that  our  Court  and  Consulate  shall  be 
housed  in  a  dignified  manner.  Our  Government  should 
give  this  substantial  evidence  of  its  appreciation  of  the 
importance  of  its  business  and  political  relation  to  the 
great  Chinese  Empire.  In  the  Orient,  more  than  any- 
where else  in  the  world,  the  effect  upon  the  eye  is  im- 
portant, and  it  must  be  very  difficult  for  Chinese  to  sup- 
pose that  the  Government  of  the  United  States  attrib- 
utes proper  importance  to  its  trade  with  China  when  it 
houses  its  Consulate  and  its  judges  in  such  miserably 
poor  and  insufficient  quarters  as  they  now  occupy.  All 
over  the  United  States,  Congress  has  provided  most  mag- 
nificent courtrooms  for  the  administration  of  Federal 
justice.  Will  it,  now  that  it  has  created  a  Court  whose 
jurisdiction  is  co-extensive  with  the  Chinese  Empire,  be 
less  generous  in  the  erection  of  a  building  which  shall 
typify  its  estimate  of  the  importance  of  its  relation  to 
Chinese  trade  and  the  Chinese  people? 


JAPAN    AND    HER    RELATIONS    WITH    THE 
UNITED  STATES 

delivered  at  a  banquet  tendered  by  the  chamber 
of  commerce,  tokio,  september  30,  1907 

Baron  Shibusawa,  Mr.  Mayor  and  Gentlemen  of 
the  Municipality  and  Chamber  of  Commerce  and 
Other  Distinguished  Citizens  of  Tokio  :  I  beg  to 
extend  to  you  my  heartfelt  thanks  and  acknowledg- 
ment for  this  magnificent  evidence  of  your  hospitality 
and  good  will.  It  is  a  little  more  than  two  years  ago 
since  a  large  party,  of  whom  I  was  one,  was  the  recipi- 
ent of  a  similar  courtesy  and  attention  in  this  very 
hotel  at  the  hands  of  the  then  Prime  Minister  Count 
Katsura.  So  many  were  we  then  that  I  ventured  to  com- 
pare our  coming  to  the  descent  of  a  cloud  of  locusts 
upon  this  devoted  land.  But  you  stood  the  onslaught 
nobly  and  your  treatment  of  us  is  a  bright  memory 
never  to  be  effaced. 

At  that  time  you  were  engaged  in  a  titanic  struggle 
with  another  great  nation,  but  the  first  traces  of  the 
dawn  of  peace  were  appearing  in  the  east.  We  Ameri- 
cans shall  always  feel  proud  of  the  part  that  Theodore 
Roosevelt,  with  the  prestige  of  the  headship  of  our  peo- 
ple, was  able  to  play  in  hastening  the  end  of  the  war. 
Peace  has  come  under  circumstances  honorable  to  both 
parties,  and  Japan,  having  proved  her  greatness  in  war 
as  in  peace,  has  taken  her  stand  in  the  first  rank  of  the 
family  of  Nations.  You  have  concluded  new  treaties  of 
amity  and  commerce  with  your  former  antagonist  and 
the  wounds  of  war  are  healed. 

54 


JAPAN'S  RELATIONS  WITH  UNITED  STATES     55 

The  growth  of  Japan  in  the  last  fifty  years  from  a 
hermit  country  to  her  present  position  is  the  marvel  of 
the  world.  In  every  step  of  that  development,  even  at 
the  very  beginning,  we  Americans  are  proud  to  record 
the  fact  that  Japan  has  always  had  the  cordial  sym- 
pathy and  at  times  the  effective  aid  of  the  United  States. 
The  names  of  Commodore  Perry,  of  Townsend,  Harris, 
of  John  A.  Bingham,  of  General  Grant  and  of  Theodore 
Roosevelt  will  be  inseparably  connected  with  the  his- 
tory of  the  advance  of  Japan  to  the  front  rank  among 
the  world  powers. 

But  now  for  a  moment,  and  a  moment  only,  a  little 
cloud  has  come  over  the  sunshine  of  a  fast  friendship 
of  fifty  years.  A  slight  shock  has  been  felt  in  the 
structure  of  amity  and  good  will  that  has  withstood 
the  test  of  half  a  century.  How  has  it  come  about? 
Well,  in  the  first  place  it  took  a  tremendous  manifesta- 
tion of  nature  to  bring  it  about.  Only  the  greatest 
earthquake  of  the  century  could  have  caused  even  the 
slightest  tremor  between  such  friends.  I  do  not  intend 
to  consider  the  details  of  the  events  in  San  Francisco. 
I  cannot  trespass  on  the  jurisdiction  of  the  Department 
of  State,  of  my  colleague  Mr.  Root,  or  my  friend  Mr. 
O'Brien,  to  discuss  them.  But  this  I  can  say,  that  there 
is  nothing  of  injustice  in  these  events  that  cannot  be 
honorably  and  fully  arranged  by  ordinary  diplomatic 
methods  between  the  two  governments,  conducted  as  they 
both  are  by  statesmen  of  honor,  sanity  and  justice,  and 
representing  as  they  do  two  peoples  bound  together  by 
half  a  century  of  warm  friendship. 

It  is  said  that  there  is  one  word  that  is  never  allowed 
to  creep  into  the  diplomatic  correspondence  between  na- 
tions, however  hostile,  and  that  word  is  "  war."  But 
I  am  not  a  diplomat  and  am  not  bound  by  diplomatic 


56  JAPAN  AND  HER  RELATIONS 

usage.  I  can  talk  of  war.  I  am  not  one  of  those  who 
hold  that  war  is  so  frightful  that  nothing  justifies  a 
resort  to  it.  We  have  not  yet  reached  the  millennium, 
and  there  are  international  grievances  that  can  be  re- 
dressed and  just  international  purposes  that  can  be 
accomplished  in  no  other  way.  But,  as  one  of  our  great 
generals  has  said,  "  War  is  hell,"  and  nothing  but  a 
great  and  unavoidable  cause  can  justify  it. 

War  between  Japan  and  the  United  States  would  be 
a  crime  against  modern  civilization.  It  would  be  as 
wicked  as  it  would  be  insane.  Neither  the  people  of 
Japan  nor  the  people  of  the  United  States  desire  war. 
The  governments  of  the  two  countries  would  strain  every 
point  to  avoid  such  an  awful  catastrophe. 

What  has  Japan  to  gain  by  it?  What  has  the 
United  States  to  gain  by  it?  Japan  has  reached  a 
point  in  her  history  when  she  is  looking  forward  with 
confident  hope  to  great  commercial  conquests.  She  is 
shaking  off  the  effects  of  war  and  is  straining  every 
nerve  for  victories  of  peace.  With  the  marvelous  in- 
dustry, intelligence  and  courage  of  her  people  there  is 
nothing  in  trade,  commerce  and  popular  contentment 
and  enlightenment  to  which  she  may  not  attain.  Why 
should  she  wish  a  war  that  would  stop  all  this?  She 
has  undertaken  with  a  legitimate  interest  in  so  close  a 
neighbor  to  reform  and  rejuvenate  an  ancient  kingdom 
that  has  been  governed  or  misgoverned  by  fifteenth  cen- 
tury methods.  His  Majesty,  the  Emperor,  has  shown 
his  appreciation  of  the  difficulty  of  the  task  by  send- 
ing to  Korea  Japan's  greatest  statesman,  who  has  ex- 
hibited his  patriotism  by  accepting  the  heavy  burden, 
when,  by  his  years  and  his  arduous  labors  for  his  coun- 
try in  the  past,  he  has  earned  a  right  to  rest.  No  mat- 
ter what  reports  may  come,  no  matter  what  criticism 


WITH  THE  UNITED  STATES  57 

may  be  uttered,  the  world  will  have  confidence  that 
Prince  Ito  and  the  Japanese  Government  are  pursuing 
a  policy  in  Korea  that  will  make  for  justice  and  civiliza- 
tion and  the  welfare  of  a  backward  people.  We  are 
living  in  an  age  when  the  intervention  of  a  stronger 
nation  in  the  affairs  of  a  people  unable  to  maintain  a 
government  of  law  and  order  to  assist  the  latter  to  bet- 
ter government  becomes  a  national  duty  and  works  for 
the  progress  of  the  world.  Why  should  Japan  wish  a 
war  that  must  stop  or  seriously  delay  the  execution  of 
her  plans  of  reform  in  Korea?  Why  should  the  United 
States  wish  war?  War  would  change  her  in  a  year  or 
more  into  a  military  nation  and  her  great  resources 
would  be  wasted  in  a  vast  equipment  that  would  serve 
no  good  purpose  but  to  tempt  her  into  warlike  policies. 
In  the  last  decade  she  has  shown  a  material  progress 
greater  than  the  world  has  ever  before  seen.  To-day 
she  is  struggling  with  the  abuses  which  accompany  such 
material  development  and  is  engaged  in  an  effort  by 
process  of  law  to  retain  the  good  for  her  people  and  to 
suppress  the  evil.  Why  should  she  risk  war  in  which 
all  the  evils  of  society  flourish  and  all  the  vultures  fat- 
ten? She  is  engaged  in  establishing  a  government  of 
law  and  order  and  prosperity  in  the  Philippine  Islands 
and  in  fitting  the  people  of  those  Islands  by  general 
education,  and  by  actual  practice  in  partial  self-gov- 
ernment, to  govern  themselves.  It  is  a  task  full  of 
difficulty  and  one  of  which  many  Americans  would  be 
glad  to  be  rid.  It  has  been  suggested  that  we  might 
relieve  ourselves  of  this  burden  by  a  sale  of  the  Islands 
to  Japan  or  some  other  country.  The  suggestion  is 
absurd.  Japan  does  not  wish  the  Philippines.  She  has 
problems  of  a  similar  nature  nearer  home.  But,  more 
than  this,  the  United  States  could  not  sell  the  Islands  to 


58  JAPAN  AND  HER  RELATIONS 

another  power  without  the  grossest  violation  of  its 
obligation  to  the  Philippine  people.  It  must  maintain 
a  government  of  law  and  order  and  the  protection  of 
life,  liberty  and  property  itself  or  fit  the  people  of  the 
Islands  to  do  so  and  turn  the  government  over  to  them. 
No  other  course  in  honor  is  open  to  it. 

Under  all  these  circumstances  then,  could  anything  be 
more  wicked  and  more  infamous  than  the  suggestion  of 
war  between  nations  who  have  enjoyed  such  a  time- 
honored  friendship  and  who  have  nothing  to  fight  for? 
"  If  this  be  true,"  someone  asks,  "  why  such  reports 
and  rumors  of  war?"  The  capacity  of  certain  mem- 
bers of  the  modern  press,  by  headlines  and  sensational 
dispatches,  to  give  rise  to  unfounded  reports  has  grown 
with  the  improvement  in  communication  between  dis- 
tant parts  of  the  world.  The  desire  to  sell  their  papers, 
the  desire  for  political  reasons  to  embarrass  an  existing 
government  and  their  even  less  justifiable  motives  have 
led  to  misstatements,  misconstructions,  unfounded 
guesses  all  worked  into  terrifying  headlines  that  have 
no  foundation  whatever.  In  each  country,  doubtless, 
there  are  irresponsible  persons  whom  war  would  aid  and 
make  prominent,  who  try  to  give  seriousness  to  such  a 
discussion,  but  when  one  considers  the  real  feelings  of 
the  two  peoples  as  a  whole,  when  one  considers  the  situa- 
tion from  the  standpoint  of  sanity  and  real  patriotism 
in  each  country,  it  is  difficult  to  characterize  in  polite 
or  moderate  language  the  conduct  of  those  who  are  at- 
tempting to  promote  misunderstanding  and  ill-feeling 
between  the  two  countries. 

It  gives  me  pleasure  to  assure  the  people  of  Japan 
that  the  good  will  of  the  American  people  toward  Japan 
is  as  warm  and  cordial  as  ever  it  was  and  the  sugges- 
tion of  a  breach  of  the  amicable  relations  between  them 


WITH  THE  UNITED  STATES  59 

finds  no  confirmation  in  the  public  opinion  of  the  United 
States.  It  is  exceedingly  gratifying  for  me  to  have  as 
my  companion  in  my  visit  to  these  shores,  Mr.  O'Brien, 
the  Ambassador  to  Japan  from  the  United  States.  We 
have  been  friends  for  years.  I  am  sure  you  will  find 
in  Mr.  O'Brien  all  that  could  be  desired  in  one  whose 
chief  official  duty  it  will  be  to  preserve  the  friendship 
between  our  two  countries. 

I  have  already  referred  to  the  enthusiastic  welcome 
which  was  accorded  our  party  of  American  Congress- 
men two  years  ago  by  the  people  of  Japan.  So  great 
was  the  kindness  of  his  Majesty  the  Emperor  and  the 
officers  of  the  Government  that  we  were  overcome  with 
our  welcome.  Coming  now  to  this  country  for  the 
fourth  time,  I  am  an  old  story  and  am  not  entitled  to 
any  other  welcome  than  that  to  be  accorded  an  old 
friend  who  comes  often.  The  distinction  of  being  the 
Emperor's  guest  another  time,  I  do  not  deserve  and 
should  feel  it  my  duty  to  decline,  enjoyable  as  the  honor 
is,  but  for  the  fact  that  I  know  that  his  Imperial  Maj- 
esty graciously  adopts  this  course,  not  as  a  personal 
matter,  but  to  signify  to  the  American  people  and  gov- 
ernment the  continuance  of  his  friendship  for  the  United 
States.  It  gives  me  the  greatest  pleasure  and  is  a 
great  honor  for  me  to  be  able  to  bring  a  reciprocal  mes- 
sage of  good  will  from  our  President  and  our  people. 


AN  APPRECIATION  OF  GENERAL  GRANT 

NEW   YORK    CITY,    MEMORIAL,   DAY,   MAY   30,  1908 
FOREWORD 

My  father,  Alphonso  Taft,  was  a  member  of  General 
Grant's  cabinet  at  the  end  of  his  second  term.  They 
were  very  warm  friends.  They  were  both  men  of  sim- 
ple, straightforward  nature  and  became  very  fond  of 
each  other.  I  was  brought  up  with  an  intense  reverence 
for  the  memory  of  General  Grant,  and  a  personal  feel- 
ing of  gratitude  to  him  for  his  kindness  to  my  father. 
When  I  was  invited  to  deliver  an  address  at  his  Tomb 
on  Riverside  Drive  on  Memorial  Day,  therefore,  I  felt 
it  my  duty  to  accept.  In  comparing  his  life  with  that 
of  Lincoln,  for  I  had  recently  been  engaged  in  the  study 
of  the  latter,  it  seemed  to  me  that  the  development  of 
Grant's  marvelous  qualities  after  the  war  began,  was 
even  more  remarkable  than  that  which  took  place  in  the 
life  of  Lincoln,  and  that  it  would  emphasize  and  make 
more  wonderful  the  greatness  of  Grant's  character  to 
describe  the  shadow  and  utter  discouragement  that 
rested  on  his  life  before  the  war.  In  doing  this  I  stated 
the  facts  as  I  understood  them.  This  evoked  in  one  or 
two  newspapers,  and  from  some  individuals  of  promi- 
nence, a  severe  criticism  of  what  I  had  said  in  respect 
to  Grant's  early  life.  By  way  of  explanation  I  gave 
the  following  statement  to  the  Associated  Press: 

"  I  am  very  much  distressed  that  anything  I  have 
said  should  be  construed  to  be  an  attack  upon  General 
Grant's  memory.  I  yield  to  no  man  in  my  admiration 
for  General  Grant,  in  my  high  estimate  of  his  remark- 

60 


AN  APPRECIATION  OF  GENERAL  GRANT     61 

able  qualities  and  character,  and  of  the  great  debt  that 
the  Nation  owes  him.  In  my  memorial  address  I  attrib- 
uted his  resignation  from  the  army  in  1854  to  his  weak- 
ness for  strong  drink,  because  from  Mr.  Garland's  life 
of  General  Grant  and  the  evidences  he  cites,  and  from 
other  histories,  I  supposed  it  was  undoubtedly  true. 

GREAT  VICTORY  OF  HIS  LIFE 

"  I  referred  to  the  matter  only  because  it  seemed  to 
me  that  it  was  one  of  the  great  victories  of  his  life  that 
he  subsequently  overcame  the  weakness.  The  wonder  of 
his  life  was  that  with  all  the  discouragements  that  he 
encountered  before  the  Civil  War,  including  this,  he  be- 
came the  Nation's  chief  instrument  in  suppressing  the 
Rebellion.  I  venture  to  say  that  no  impartial  man  can 
read  my  Memorial  Day  address  and  say  I  do  not  give 
General  Grant  a  place  in  history  as  high  as  that 
given  him  by  any  of  his  historians  or  his  admirers. 

"  The  lives  of  our  great  men  belong  to  the  country. 
If  facts  are  told  showing  that  they  had  weaknesses  which 
they  overcame,  the  force  of  their  successful  example  is 
greater  to  lift  the  youth  of  the  country  up  to  emulate 
them  than  if  they  are  painted  as  perfect  without  temp- 
tation and  without  weaknesses." 

ADDRESS 

The  custom  of  decorating  the  graves  of  those  who  have 
died  in  war  for  their  country  is  a  beautiful  and  useful 
one.  It  brings  us  to  a  contemplation  of  those  crises  in 
our  history  in  which  our  countrymen,  numbered  by  the 
hundreds  of  thousands,  from  a  sense  of  duty  solely, 
parted  with  all  that  the  Nation  might  live.  "  Greater 
love  hath  no  man  than  this  that  he  lay  down  his  life  for 
his  friends."    I  do  not  know  any  place  which  thrills  one's 


62     AN  APPRECIATION  OF  GENERAL  GRANT 

bosom  with  such  patriotic  ecstasy  as  the  sepulchre  of 
the  unknown  dead  in  Arlington  Cemetery.  The  thought 
of  the  heroism  and  sacrifice  of  those  who,  without  a  mur- 
mur and  without  even  hope  of  personal  credit  or  glory, 
gave  up  all  to  maintain  a  sacred  cause,  makes  all  motive 
of  personal  advancement  or  ambition  seem  small  and 
sordid.  It  was  the  distinguishing  characteristic  of  our 
Civil  War  that,  from  generals  to  the  humblest  privates,, 
the  army  was  actuated  by  a  real  love  of  the  cause. 
There  are  those  who  think  the  war  was  unnecessary — 
that  it  might  have  been  avoided.  I  can  not  agree  with 
them.  The  situation  was  one  for  which  only  such  a  con- 
vulsion as  war,  dreadful  as  it  was,  could  afford  a  com- 
plete remedy.  This  day,  which  brings  back  to  us  the 
awful  losses  that  the  war  entailed  and  renews  the  fond 
memories  of  those  known  and  unknown  heroes  whose 
devotion  to  duty  is  an  ever  living  assurance  of  the 
patriotism  of  this  people,  should  for  a  time  take  us  out 
of  the  atmosphere  of  self-seeking,  of  money-making,  of 
pleasure-hunting,  and  of  peaceful  sloth,  that  we  may 
value  again  the  many  instances  it  revives  of  mental  and 
physical  courage,  self-denial,  self-restraint,  and  self- 
sacrifice.  The  day,  with  its  reminiscences,  assures  us 
that  the  hearts  of  our  people  to-day,  eager  as  they  seem 
now  in  the  search  for  wealth  and  comfort,  would  fur- 
nish a  response  to  the  Nation's  call  as  full,  as  willing, 
and  as  mighty  as  was  the  response  when  the  struggle 
for  the  Nation's  existence  began  in  '61.  The  Civil  War 
is  the  great  epic  of  our  history,  and  though  fully 
forty-three  years  have  passed  since  peace  was  declared, 
a  grateful  Nation  is  still  conferring  rewards  on  the 
brave  participants  of  the  struggle,  and  honoring  the 
memory  of  its  dead.  The  enormous  effort  of  the  whole 
people  as  a  Nation,  and  the  burdens  they  gladly  assumed 


AN  APPRECIATION  OF  GENERAL  GRANT     63 

to  maintain  the  national  integrity,  and  to  cut  out  the 
cancer  of  slavery  that  was  eating  away  our  national 
life,  do  not  grow  any  less,  from  an  historical  stand- 
point, as  the  decades  pass.  In  the  making  of  history 
in  a  republic,  political  controversy  colors  the  contempo- 
rary view,  so  that  a  considerable  time  must  elapse  before 
the  credit,  or  lack  of  it,  properly  to  be  ascribed  to  a 
free  people  for  carding  out  any  policy,  can  be  meas- 
ured. The  greatness  of  our  Nation,  as  shown  in  the 
struggle  of  the  Civil  War,  however,  is  now  everywhere 
recognized,  and  in  the  perspective  of  forty  years,  there 
is  none  to  decry  or  belittle  it. 

We  are  a  humor-loving  people.  We  dislike  shams. 
Our  sense  of  the  ridiculous  is  very  keen,  almost  too 
keen,  and  in  the  mercantile  and  material  spirit  which 
has  been  rife,  we  are  prone  to  make  light  of  exhorta- 
tions to  patriotism,  and  the  forms  and  symbols  through 
which  patriotism  finds  expression.  I  think  we  have 
gone  too  far  in  this  direction.  Patriotism  is  a  real 
virtue,  and  the  forms  and  symbols  which  suggest  it,  and 
-by  which  we  recognize  its  existence  and  our  respect  for 
it,  are  proper  reminders  of  a  serious  duty,  and  keep  us 
in  touch  with  it  as  an  elevating  motive.  The  disposition 
to  dispense  with  all  form  which  characterized  our  Puritan 
ancestors,  has,  I  think,  been  greatly  modified,  and  rea- 
sonable persons  now  recognize  the  advantage  of  cere- 
mony— not  only  in  religious  worship,  but  also  in  the 
discharge  of  many  other  functions  analogous  to  reli- 
gious worship  in  their  sacred  character. 

Take  the  administration  of  justice.  It  is  well  that 
judges  should  be  clothed  in  robes,  not  only,  that  those 
who  witness  the  administration  of  justice  should  be 
properly  advised  that  the  function  performed  is  one  dif- 
ferent from,  and  higher,  than  that  which  a  man  dis- 


64     AN  APPRECIATION  OF  GENERAL  GRANT 

charges  as  a  citizen  in  the  ordinary  walks  of  life;  but 
also,  in  order  to  impress  the  judge  himself  with  the  con- 
stant consciousness  that  he  is  a  high-priest  in  the  temple 
of  justice  and  is  surrounded  with  obligations  of  a  sacred 
character  that  he  cannot  escape  and  that  require  his 
utmost  care,  attention  and  self-suppression. 

So,  too,  when  the  national  anthem  is  played,  every 
true-hearted  American  should  make  known  his  seiise 
of  the  presence  of  the  vital  essence  of  nationality  in 
the  notes  of  the  Star  Spangled  Banner  by  rising  and 
removing  his  hat. 

Mere  forms  these  may  be,  but  they  are  the  evidence 
of  the  existence  of  a  love  of  country,  and  the  more  fre- 
quently we  are  conscious  of  the  presence  in  us  of  such 
a  feeling,  the  more  certain  we  can  be  that  our  acts  of 
courage  and  self-sacrifice  will  correspond  to  it  when  oc- 
casion arises. 

Hence,  the  advantage  of  the  celebration  of  a  day  like 
this,  or  of  the  Fourth  of  July,  or  of  Washington's 
Birthday— lest  we  forget  the  obligations  that  are  upon 
us  as  citizens  of  our  common  country — lest  we  forget 
the  gratitude  we  should  feel  to  our  ancestors  who 
founded  the  Nation,  and  to  their  descendants  who  saved 
it,  in  the  Civil  War,  from  dissolution  and  destruction. 

It  always  gives  force  and  emphasis  to  our  interest  in 
memorials  of  this  character  if  we  have,  in  our  minds,  the 
concrete  conception  of  the  persons  who  made  the  sacri- 
fices that  we  celebrate;  if  we  have  relatives  who  gave 
up  their  lives  and  whose  graves  we  can  reconsecrate, 
each  returning  Decoration  Day.  And  to  those  of  us 
who  do  not  have  this  inspiring  association  of  kinship 
for  some  hero  of  the  war,  it  gives  a  personal  touch, 
and  the  necessary  concrete  element,  to  take  up  and  re- 
view the  life  of  one  of  the  leaders  of  the  struggle  and 


AN  APPRECIATION  OF  GENERAL  GRANT     65 

learn  from  the  vicissitudes  of  his  career  the  makings  of 
greatness  and  the  tests  of  patriotic  devotion. 

It  is  appropriate,  therefore,  for  us  to  gather  at  this 
magnificent  structure  dedicated  to  the  memory  of  one 
whose  name  in  the  history  of  the  foundation  and  main- 
tenance of  this  Nation's  life  will  always  be  associated 
with  those  of  Washington  and  Lincoln. 

We  have  in  the  beautiful  white  shaft  which  rises  high 
on  the  banks  of  the  Potomac,  and  which  comes  unbidden 
in  its  silent  purity  into  every  landscape  of  the  Nation's 
Capital,  the  country's  expression  of  its  gratitude  to 
Washington.  There  is  as  yet  no  adequate  national 
expression  of  the  popular  feeling  of  love  and  reverence 
for  the  martyred  Lincoln.  But  this  magnificent  sepul- 
chre on  the  banks  of  the  beautiful  Hudson  in  the  great- 
est center  of  population  of  the  new  world,  is  an  appro- 
priate expression  of  the  debt  which  the  Nation  owes  to 
Grant — the  greatest  military  hero  of  the  Civil  War. 

At  this  place,  in  this  presence,  and  before  an  Associa- 
tion of  his  comrades  that  bears  Grant's  name,  it  is 
fitting  to  stimulate  our  patriotism  by  a  brief  reference 
to  his  remarkable  life,  character  and  public  service. 

When  we  consider  the  galaxy  of  great  statesmen  and 
patriots  that  waited  upon  the  conception  and  birth  of 
our  Nation  and  made  them  possible,  it  is  very  difficult 
to  avoid  a  conviction  that  there  was  Providential  inter- 
ference to  secure  to  the  life  of  our  Nation  a  successful 
growth.  Consider  the  wonderful  adaptability  of  the 
character  of  Washington  to  the  crises  that  were  pre- 
sented from  time  to  time  in  the  Revolutionary  War,  and 
then  after  the  war  was  over,  to  the  still  greater  crisis  in 
the  life  of  the  Nation  when  he  was  called  upon  to  use 
his  power  of  composing  difficulties  in  the  Constitu- 
tional Convention,  whose  work  made  the  thirteen  quar- 


66     AN  APPRECIATION  OF  GENERAL  GRANT 

reling  states  a  united  country.  Consider  the  abilities 
of  Hamilton  and  Jefferson,  and  Madison  and  Marshall, 
that  were  all  of  them  necessary  to  give  strength  and 
substance  to  the  new  Nation.  So,  too,  is  it  difficult  not 
to  yield  to  the  conviction  that  the  same  Providence  pre- 
sided over  the  fate  of  this  country  when  the  terrible 
struggle  caused  by  the  cancer  of  slavery  made  necessary 
such  a  convulsion  as  that  of  the  War  of  the  Rebellion, 
and  was  manifested  in  the  presence  of  Lincoln  and 
Grant  to  meet  the  exigencies  of  that  crisis. 

I  shall  not  stop  to-day  to  dwell  upon  the  grandeur 
and  pathos  of  the  character  of  Lincoln,  or  to  point  out 
how  wonderful  it  was  that  from  such  squalid  beginnings 
there  could  be  developed  the  traits  and  qualities  needed 
in  our  martyred  President  to  save  the  country.  The 
character  of  Grant  as  developed  by  the  war  and  as  nec- 
essary to  the  result,  was  as  remarkable  in  its  way,  con- 
sidering his  previous  history,  as  was  that  of  Lincoln. 
It  is  true  that  Grant  received  an  education  at  West 
Point ;  but  certainly  nothing  was  developed  there  in 
him  to  indicate  his  fitness  or  ability  to  meet  great  re- 
sponsibilities. He  did  well  in  the  Mexican  War,  as 
did  other  lieutenants.  He  manifested,  as  regimental 
quartermaster,  energy  and  familiarity  with  his  duties. 
But  in  1854  he  resigned  from  the  Army  because  he  had 
to.  He  had  yielded  to  the  weakness  of  a  taste  for  strong 
drink,  and  rather  than  be  court-martialed  he  left  the 
Army.  He  returned  from  Vancouver  on  the  Pacific 
Coast  to  his  family  at  St.  Louis  without  money,  without 
property — a  disheartened  man.  He  accepted  from  his 
father-in-law  a  loan  of  seventy-five  acres  of  land  upon 
which  he  constructed  a  house  for  his  family  to  live  in, 
and  here  he  carried  on  farming  operations.  His  chief 
business  seemed  to  be  that  of  selling  wood,  of  cutting  it 


AN  APPRECIATION  OF  GENERAL  GRANT     67 

and  piling  it  in  the  backyards  of  the  well-to-do  people 
of  St.  Louis.  After  six  years  of  this  life,  he  gave  up 
farming  because  of  ill  health,  and  went  into  the  real 
estate  business  for  a  year.  He  failed  in  this.  His 
associate  dissolved  the  partnership.  Then,  at  last,  his 
father  offered  him  $600  a  year  as  a  clerk  in  his  leather 
store  at  Galena,  Illinois,  and  thence  he  moved  from  St. 
Louis.  He  worked  here  for  a  year  also.  During  these 
seven  years,  though  everything  looked  dark,  he  over- 
came in  a  great  measure  his  weakness  for  strong  drink. 
But  he  was  so  constituted,  so  retiring,  so  lacking  in 
"  push "  for  himself,  that  it  seemed  impossible  for 
him  to  earn  a  livelihood,  even  when  he  had  given 
hostages  to  Fortune  in  the  shape  of  a  wife  and  four 
children. 

Then  the  Civil  War  came  on.  Grant  had  never  been 
a  dreamer  of  possible  military  glory.  He  had  gone  to 
West  Point  because  it  offered  him  an  opportunity  for 
an  education.  He  did  not  like  life  at  West  Point, 
and  while  he  seemed  in  the  Mexican  War  to  be  well 
adapted  to  the  command  of  men,  to  be  well  adapted  to 
the  duty  of  quartermaster,  he  never  had  that  vaulting 
military  ambition  that  was  present  in  the  character  of 
Napoleon  and  other  great  military  leaders.  He  ten- 
dered his  services  at  the  beginning  of  the  war  solely  from 
a  sense  of  duty  and  obligation  for  his  education.  His 
having  been  a  student  at  West  Point  and  a  regular 
army  officer  necessarily  brought  him  to  the  front  when 
military  training  and  experience  were  in  such  great  de- 
mand. He  modestly  suggested  in  his  letter  to  the  Ad- 
jutant-General at  Washington  that  he  believed  he  was 
fitted  to  command  a  regiment.  He  never  gave  evidence 
of  military  ambition.  He  visited  Cincinnati  seeking 
to  become  a  staff  officer  of  McClellan,  but  in  vain.    And 


68     AN  APPRECIATION  OF  GENERAL  GRANT 

then,  by  great  good  luck,  he  was  made  the  Colonel  of  the 
Twenty-first  Illinois,  by  Governor  Yates. 

What  a  marvelous  change  came  into  his  life  after 
this !  From  the  time  he  took  command  of  that  regiment 
until  the  surrender  at  Appomattox,  his  life  was  one 
continual,  well-directed,  well-planned  effort  to  suppress 
the  rebellion.  From  that  time  on,  his  constant  quest 
was  to  find  and  fight  the  enemy.  Beginning  with  the 
Battle  of  Belmont,  he  was  always  in  the  field  and  always 
seeking  the  Confederate  forces.  Though  in  the  west, 
he  suffered,  as  did  the  Eastern  generals,  from  the  in- 
terference of  the  War  Department,  and  the  paper 
strategists  like  Halleck;  and  the  freedom  of  his  move- 
ments was  curtailed  and  his  constant  activity  restrained 
by  timidity  and  jealousy  of  his  superior  officers.  But 
in  spite  of  all  this  he  pressed  on,  and  by  the  victories  he 
won  he  compelled  the  War  Department  to  give  him  a 
freer  hand.  Fort  Henry,  Fort  Donelson  and  Shiloh 
were  victories  that  shone  like  stars  in  the  darkness  of 
the  defeats  of  other  Union  commanders,  and  although 
relieved  from  all  command  for  a  short  period,  he  finally 
was  put  in  command  of  the  army  charged  with  the  duty 
of  taking  Vicksburg — and  he  took  it.  Then  followed 
the  great  battle  of  Chattanooga  and  Missionary  Ridge, 
after  which  he  was  called  to  Washington,  made  Lieu- 
tenant-General  and  Commander  of  the  entire  army  of 
the  United  States.  Then  for  the  first  time,  he  com- 
manded against  Lee,  and  for  a  year  he  measured  swords 
with  that  great  military  leader  of  the  South,  who  ulti- 
mately succumbed  and  surrendered  to  him  the  Army  of 
Northern  Virginia,  at  Appomattox. 

Of  course,  it  is  not  to  be  questioned  that  Grant's 
abilities  to  command  developed  with  his  increasing  ex- 
perience.    It  is  not  to  be  questioned  that  his  success 


AN  APPRECIATION  OF  GENERAL  GRANT     69 

depended,  too,  upon  the  resources  of  the  North  that 
furnished  him  men  and  equipment.  But  in  war  as  in 
other  things  in  life,  as  in  all  history,  merit  is  determined 
by  the  event,  and  it  was  Grant  who  led  the  armies  and 
infused  his  personal  spirit  in  their  leadership.  It  was 
Grant  that  finally  subdued  the  rebellion.  It  was  at 
one  time  customary  to  criticise  Grant's  campaigning  and 
to  intimate  that  his  knowledge  of  military  strategy  was 
not  such  as  to  justify  a  comparison  of  him  with  Lee  and 
other  generals.  Grant  had  a  very  broad  conception 
of  the  work  which  the  North  had  before  it  in  subduing 
the  South.  He  had  an  opportunity  in  his  life  to  know 
the  Southern  people  and  to  discriminate  in  respect  to 
them  so  as  to  understand  that  while  they  talked  a  great 
deal,  they  could  also  do  a  great  deal.  He  believed  that 
the  only  way  of  subduing  the  rebellion  was  by  fighting 
the  armies  of  the  rebellion,  and  that  after  all,  the  con- 
test between  the  two  parts  of  this  Nation  was  a  contest 
of  resources  of  men  and  of  wealth.  And  in  the  end, 
it  proved  to  be  so.     His  judgment  was  vindicated. 

It  is  said  that  Grant  was  not  a  man  of  military 
genius.  It  is  difficult  to  define  what  genius  is.  Some 
describe  it  as  the  capacity  for  taking  infinite  pains.  If 
so,  Grant  was  a  genius.  Halleck  was  a  great  authority 
on  military  science  and  grand  strategy,  and  he  never 
planned  a  campaign  unless,  like  a  lawyer  with  his  prec- 
edents, he  could  turn  to  the  page  of  the  military  text- 
book and  justify  his  plan  by  a  reference  to  a  battle  of 
Caesar,  Napoleon  or  Frederick.  Had  he  been  able  to 
anticipate  Grant's  plan  for  the  taking  of  Vicksburg, 
he  would  certainly  have  prevented  it.  And  yet,  in  com- 
paring the  strategic  ability  of  Grant  with  that  of  other 
generals,  it  can  be  truly  said  that  there  is  no  campaign 
in  the  Civil  War  that  showed  more  originality,  greater 


70     AN  APPRECIATION  OF  GENERAL  GRANT 

celerity  of  movement,  better  calculation  of  opposing 
forces,  and  more  effective  results,  than  the  one  begin- 
ning with  the  capture  of  Grand  Gulf,  continued  by  the 
battles  of  Jackson,  Champion  Hills  and  the  Big  Black, 
and  ending  with  the  surrender  of  Vicksburg.  Equally 
well  wrought  out,  though  not  so  difficult  of  execution, 
was  the  battle  of  Chattanooga,  Missionary  Ridge  and 
Lookout  Mountain. 

We  are  told  by  those  who  know,  that  Grant  was  ex- 
ceedingly familiar  with  all  the  campaigns  of  great  mili- 
tary leaders,  that  his  memory  was  retentive  and  his  in- 
terest in  the  science  was  great.  But  he  had  sufficient 
common  sense,  he  had  a  sufficient  real  grasp  of  military 
problems,  he  had  sufficient  understanding  of  the  differ- 
ence in  conditions  under  which  previous  campaigns  had 
been  fought  and  those  which  he  had  to  fight,  to  exercise 
original  thought  and  to  free  himself  from  the  bonds  of 
military  precedent,  as  at  Vicksburg. 

Grant  was  a  man  of  such  a  sensitive  nature  that  he 
could  not  bear  to  see  even  animals  subjected  to  pain. 
And  yet  his  conception  of  war  and  its  necessities  was  so 
clear  that  the  dreadful  losses  sustained  by  him  in  the 
Wilderness,  at  Spottsylvania,  and  at  Cold  Harbor,  and 
in  the  other  campaigns  against  Lee,  did  not  turn  him 
from  his  purpose  or  lead  him  to  change  his  plan,  which 
he  had  deliberately  formed,  of  wearing  Lee  out  and  by 
constant  hammering,  of  ending  the  army  of  Northern 
Virginia.  His  purpose  was,  at  the  cost  of  losses  which 
the  Northern  army  was  able  to  stand,  to  inflict  losses 
upon  the  Southern  army  which,  in  the  end,  meant  its 
destruction.  A  calculation  of  the  losses  which  the  army 
of  the  Potomac  sustained  during  the  first  three  years 
of  the  war  shows  them  to  have  been  far  greater  than 
those  sustained  by  Grant  during  his  campaigns  of  '64 


AN  APPRECIATION  OF  GENERAL  GRANT     71 

and  '65  against  Lee ;  and  it  is  certainly  not  too  much  to 
say  that  had  Grant's  military  career  as  a  general  begun 
in  the  east  as  it  did  begin  in  the  west,  the  war  would 
not  have  been  lengthened  out  to  a  full  four  years. 

The  tenacity  with  which  Grant  conducted  a  cam- 
paign, the  speed  with  which  he  followed  up  a  victory, 
the  promptness  with  which  he  was  on  hand  the  next 
morning. with  a  force  ready  to  fight  after  a  drawn  bat- 
tle, if  put  into  practice  in  the  army  of  the  Potomac 
during  the  first  three  years  of  the  war  would  certainly 
have  brought  about  an  earlier  termination. 

Grant's  idea  of  a  war  was  a  fight  and  a  continuous 
series  of  battles,  and  his  theory  of  winning  victories 
was,  that  the  side  which  was  first  ready  the  morning 
after  a  battle  to  resume  it,  would  win  in  the  end. 

The  greatness  of  the  man  was  seen  in  his  willingness 
to  assume  responsibilities,  and  his  power  of  standing 
the  strain  when  defeat  and  disaster  seemed  to  threaten 
the  success  of  his  plans  and  to  indicate  their  weakness. 
It  was  then,  having  determined  on  what  his  plan  should 
be,  he  stuck  to  it  and  pushed  it  through  in  the  face  of 
all  opposition  and  vindicated  his  judgment  by  ultimate 
success.  He  was  entirely  willing  to  receive  advice,  but 
his  decision  was  his  own. 

Another  quality  which  he  had  as  a  great  military 
commander  was  the  power  of  selecting  competent  sub- 
ordinates and  of  instilling  into  them  confidence  in  him 
and  his  purpose,  which  almost  insured  success.  The 
men  he  especially  selected  were  Sherman,  Sheridan,  Mc- 
Pherson,  Rawlins  and  Logan,  and  how  well  they  justi- 
fied his  choice!  When  he  came  east,  he  suffered  from 
an  absence  of  that  mutual  understanding  between  com- 
mander-in-chief and  subordinate  commanders  that  had 
been  of  such  value  to  him  in  his  earlier  campaigns. 


72     AN  APPRECIATION  OF  GENERAL  GRANT 

The  history  of  Grant's  relation  to  those  of  his  sub- 
ordinates to  whom  he  gave  confidence  and  whom  he  had 
himself  selected  is  a  fascinating  one.  The  relations 
which  existed  between  him  and  Sherman,  it  is  pleasant 
to  dwell  upon.  The  utter  absence  of  jealousy  between 
them  and  the  pleasure  which  each  took  in  the  successes 
of  the  other  are  as  delightful  as  they  are  rare.  Could 
anything  be  more  exquisite  than  the  story  of  Sherman's 
writing  a  long  protest  to  the  War  Department  against 
the  wisdom  of  the  campaign  east  of  Vicksburg,  which 
easily  is  the  greatest  strategic  success  of  the  war,  and 
Grant's  pigeonholing  and  returning  to  Sherman  the 
protest  after  the  campaign  was  won?  Then,  in  Sher- 
man's letter  to  Grant,  when  Grant  was  appointed  to  the 
command  of  the  army,  his  expressions  of  admiration 
and  confidence  all  make  us  think  more  of  our  human 
kind,  because  we  encounter  so  frequently  the  small  jeal- 
ousies between  the  great  which  sometimes  are  permitted 
to  interfere  with  the  successful  progress  of  events,  even 
in  the  crises  of  our  national  life.  The  love  that  existed 
between  Grant  and  Sheridan  is  another  ennobling  rela- 
tion that  it  is  pleasant  to  contemplate.  And  the  mutual 
confidence  which  each  reposed  in  the  other,  and  which 
was  so  abundantly  justified,  furnishes  another  instance 
of  the  course  of  true  friendship  between  the  great  in 
which  no  yellow  spot  of  jealousy  tortures  the  eye. 

One  characteristic  of  Grant  is  shown  in  a  letter  which 
Lincoln  wrote  concerning  him  in  which  he  says,  with 
respect  to  previous  generals,  his  experience  had  been 
such  that  he  always  expected  after  a  general  had  been 
appointed,  to  hear  from  him  that  a  great  many  things 
were  needed  in  the  army  which  he  knew  that  Lincoln 
was  not  able  to  give  him,  and  that  this  was  followed  by 
the   statement   that   if  he   had   those   things,   then   he 


AN  APPRECIATION  OF  GENERAL  GRANT     73 

could  win  the  victory.  He  said  Grant  differed  from 
the  other  generals  in  this  respect,  that  he  took  what  he 
had  and  went  ahead  and  with  those  things  he  did  what 
he  could  and  what  was  to  be  done.  He  gave  an  in- 
stance: He  said  he  had  fifteen  thousand  cavalrymen  at 
Harper's  Ferry,  without  horses.  He  had  attempted  to 
get  horses  and  could  not  secure  them.  Previous  gen- 
erals had  said  to  him  that  if  they  could  have  that  fif- 
teen thousand  cavalry,  they  could  accomplish  great 
things  and  win  a  victory.  What  Grant  said  was, 
"  With  your  authority  I  will  arm  these  men  and  make 
them  infantrymen,  or  I  will  send  them  home." 

And  so  it  was  that  through  the  battles  of  Belmont, 
Fort  Henry,  Fort  Donelson,  Shiloh,  Vicksburg,  Chatta- 
nooga, the  Wilderness,  Spottsylvania,  Cold  Harbor, 
Five  Forks  and  Appomattox,  with  all  the  numerous 
contests  that  these  names  cover  and  include,  Grant  was 
always  fighting  with  the  men  and  the  material  he  had. 
He  realized  that  omelets  could  not  be  made  without 
breaking  eggs.  He  knew  that  a  war  could  not  be  carried 
on  without  fighting.  And  he  was  conscious  that  the 
more  the  fighting  to  a  purpose  was  constant,  the  sooner 
the  war  would  end.  He  was  willing  to  be  called  callous, 
and  indifferent  to  loss  of  life,  painful  to  his  sensitive 
nature  as  that  charge  must  have  been,  if  only  by 
the  losses  which  were  sustained  peace  be  ultimately 
gained. 

It  is  difficult  to  associate  the  real  personality  of 
Grant  as  it  showed  itself  in  the  seven  years  in  civil  life 
before  the  war  and  as  it  appeared  in  the  intimacy  of 
family  and  personal  associations  at  any  time,  with  that 
of  a  victorious  commander  of  an  army  of  a  million  men. 
He  was  naturally  so  modest,  so  retiring,  so  sweet-tem- 
pered, so  pure  of  speech  and  thought,  so  sensitive  at 


74     AN  APPRECIATION  OF  GENERAL  GRANT 

the  exhibition  of  pain,  either  on  the  part  of  persons  or 
animals,  apparently  so  lacking  in  "  push,"  so  indisposed 
to  seek  prominence,  one  could  not  imagine  that  under- 
neath these  traits  there  was  such  an  iron  will  and  such 
a  power  to  stand  the  strain  of  any  responsibility  in  the 
pursuit  of  a  plan  which  he  had  made  up  his  mind  could 
be  worked  and  made  successful.  The  directness  and 
straightforwardness  of  his  nature  gave  him  a  sim- 
plicity with  which  we  do  not  always  associate  the  power 
of  great  concentration  of  thought  and  will  to  accom- 
plish a  purpose.  And  it  certainly  was  a  marvelous 
combination  of  traits  of  character  that  in  the  seven 
years  before  the  war  made  Grant  so  unsuccessful  in 
business,  and  subsequently  made  him  the  tower  of 
strength  that  he  was,  as  the  victorious  leader  in  the 
greatest  war  in  modern  times. 

His  modesty,  his  lack  of  expectation  that  anyone 
would  think  much  of  him,  seems  to  have  given  him  an 
undue  appreciation  of,  and  an  excessive  gratitude  for 
favors  done  him.  He  seems  never  to  have  forgotten  a 
kind  word.  And  a  generous  attention,  received  from 
no  matter  whom,  he  sought  to  repay  many  fold.  A 
knowledge  of  this  one  of  his  characteristics  led  men  of 
little  scruple  to  take  advantage  of  it,  and  of  him.  He 
trusted  his  friends  as  no  man  trusted  before.  And  his 
trust  was  in  a  number  of  instances  misplaced.  But  the 
faults  he  had,  and  the  weaknesses  he  had,  were  generous. 
They  were  those  that  make  us  love  his  memory  the  more 
and  forget  the  mistakes  that  they  led  him  into. 

The  country  owes  more  to  Grant  than  can  be  esti- 
mated for  the  great  things  which  were  accomplished 
during  his  two  terms  as  President.  The  Geneva  arbi- 
tration, the  veto  of  the  inflation  bill,  the  passage  of  the 
resumption  bill,  were  his  work.     But  in  all  of  his  long 


AN  APPRECIATION  OF  GENERAL  GRANT     75 

and  useful  public  life,  the  two  greatest  scenes  were  at 
Appomattox  and  at  Mt.  McGregor. 

At  Appomattox  he  showed  in  its  finest  degree  his 
modesty,  and  in  his  earnest  desire  to  secure  a  peace  in 
which  the  defeated  would  suffer  as  little  as  possible,  he 
manifested  the  highest  patriotism. 

At  Mt.  McGregor,  after  his  wonderful  and  success- 
ful struggle  under  the  shadow  of  impending  doom  to 
write  the  memoirs  which  were  to  free  his  name  and 
estate  from  debt  and  financial  disaster,  his  death  was 
heroic. 

This  magnificent  Mausoleum  on  this  grand  site  upon 
the  beautiful  river  furnishes  such  a  hero  a  fitting  rest- 
ing place.  May  it  forever  remain  to  inspire  his  coun- 
trymen to  patriotic  thought  and  effort! 


THE  ARMY  OF  THE  UNITED  STATES 

ADDRESS    BEFORE    THE    BOARD    OF    TRADE    OF    COLUMBUS, 
OHIO,    APRIL   2,    1908 

I  am  always  glad  to  visit  this  central  and  Capital  city 
of  Ohio,  where  the  Governor  executes,  the  Legislature 
legislates  and  the  steady  growth  of  this  enterprising 
community  measures  the  progress  of  our  great  State. 
The  last  time  I  had  the  honor  of  addressing  an  audience 
in  this  city  was  in  this  very  hall  in  the  heated  days  of 
August  of  last  year,  the  memory  of  which  still  makes 
my  heart  heat  in  sympathy  for  those  unfortunates  who 
were  subjected  to  a  Turkish  bath  of  an  hour  and  three- 
quarters  duration.  I  promise  to  inflict  upon  the  present 
audience  no  such  cruel  and  unusual  punishment. 

I  have  selected  for  a  topic  to-night  an  institution  in 
this  country  which  I  think  has  too  little  popular  con- 
sideration and  attention  in  times  of  peace.  I  refer  to  the 
Army  of  the  United  States.  The  Navy  is  a  favorite 
of  the  people,  whether  they  belong  to  the  web-footed 
class  that  go  down  to  the  sea  in  ships,  or  inhabit  the 
Mississippi  Valley,  or  live  upon  the  Rocky  Mountain 
range.  There  is  something  about  the  concrete  strength 
of  a  great  battleship  and  the  simplicity  and  courage  of 
the  sailorman  behind  the  gun  representing  us  in  all 
parts  of  the  world,  and  coming  into  contrast  with  the 
ships  and  sailors  of  other  countries,  that  appeals  to  the 
imagination  of  the  American  people.  They  take  the  blue- 
jackets  into  their  arms  with  affection,  and  no  appro- 
priation necessary  for  the  increase  and  perfection  of  the 
Navy  seems  unreasonable.  I  am  glad  that  this  is  so, 
because  I  should  be  the  last  to  detract  from  the  impor- 

76 


THE  ARMY  OF  THE  UNITED  STATES       77 

tance  of  maintaining  and  increasing  the  Navy,  and  am  a 
great  admirer  of  the  efficiency  and  spirit  of  its  blue- 
jackets and  marines.  But  what  I  wish  to  plead  for  to- 
night is  that  the  boys  in  khaki  and  blue  of  the  regular 
army  are  just  as  much  entitled  to  the  kindly  feeling  and 
high  interest  of  the  American  people  as  the  sailors  of  the 
Navy,  and  that  the  work  they  have  done  and  are  doing 
and  may  .have  to  do  in  the  future  is  of  just  as  great 
importance  as  any  that  the  Navy  has  done,  is  doing  or 
will  have  to  do.  The  function  which  the  Navy  performs 
is  perhaps  a  bit  more  spectacular  than  that  of  the 
Army,  and  that  of  itself  explains  perhaps  the  difference 
in  the  popular  attitude  toward  the  two  services. 

Take  the  battle  of  Manila  Bay,  and  the  operations 
which  followed  it.  The  glory  which  the  Navy  properly 
received  from  its  accomplishment  upon  that  May  morn- 
ing far  exceeded  anything  that  was  accorded  to  the 
Army's  arduous  and  delicate  work  which  it  carried  on 
in  the  four  years  succeeding  for  the  pacification  of  the 
Philippine  Islands,  and  bringing  them  into  a  condition 
in  which  the  benevolent  policy  of  McKinley  could  be 
carried  out  successfully. 

The  detailed  history  of  the  instances  of  courage,  pri- 
vation, patience  and  patriotic  devotion  to  our  national 
policy  in  the  Islands,  exhibited  by  the  officers  and  en- 
listed men  of  the  Army,  which  will  do  justice  to  them, 
can  never  be  written,  first,  because  an  adequate  record 
of  it  does  not  exist;  and,  second,  because  it  can  only  be 
known  to  the  people  of  the  United  States  through  results, 
and  not  through  such  a  triumphant  and  dramatic  pic- 
ture as  that  we  all  like  to  dwell  upon,  of  the  epoch-mak- 
ing naval  victory  off  Cavite. 

The  naval  action  is  usually  affirmative.  To  be  use- 
ful it  must  strike,  and  this  makes  its  function  dramatic 


78       THE  ARMY  OF  THE  UNITED  STATES 

and  commands  the  popular  attention.  The  function  of 
the  Army  of  late  years  has  generally  been  that  of  ac- 
complishment by  patient  effort,  stretching  sometimes 
over  months  and  years,  but  always  requiring  close  atten- 
tion, tenacious  courage  and  self-restraint.  Its  work  has 
been  not  only  that  of  attack  but  more  often  and  for 
longer  that  of  police  administration  and  pacification. 
Take  its  work  in  San  Francisco.  Could  anything  be 
more  commendable  than  the  maintenance  of  order  by  the 
Army  through  that  stricken  city,  shaken  by  the  earth- 
quake, destroyed  by  fire  and  about  to  be  exposed  to  the 
awful  violence  of  mob  and  riot,  when,  under  the  in- 
spiration of  the  two-o'clock  courage  of  Funston,  its  con- 
trol passed  into  the  hands  of  the  regular  army,  and 
thereafter  theft  and  rapine  and  violence  were  banished 
by  the  long  faithful  hours  of  the  regular  soldiers  on 
guard? 

Take  the  instance  of  Cuba.  The  formidable  naval 
fleet  came  first  and  gave  to  the  hands  of  those  seeking 
peace  the  effective  power  to  command  it ;  but  in  a  short 
two  weeks,  to  the  Army  fell  the  task  of  garrisoning  the 
island  in  such  a  way  as  to  discourage  lawlessness  and 
encourage  the  friends  of  order.  I  ask  you,  has  any- 
thing been  finer  in  the  history  of  the  Army  than  the  way 
in  which  our  5,000  men  have  settled  down  in  an  alien 
country  like  Cuba,  have  secured  the  maintenance  of 
peace  and  order  without  the  slightest  complaint  that 
any  officer  or  soldier  has  exhibited  any  lack  of  respect 
for  the  feelings  of  the  Cubans  under  the  trying  circum- 
stances of  our  occupation,  or  any  lack  of  tact  in  carry- 
ing out  the  difficult  task  assigned  to  them?  But  such 
work,  made  up  of  an  infinity  of  little  things  and  prov- 
ing a  constant  and  uniform  self-restraint,  appreciation 
of  the  situation  and  commendable  military   discipline^ 


THE  ARMY  OF  THE  UNITED  STATES       79 

does  not  strike  the  popular  imagination  and  is  not  apt 
to  call  forth  the  admiration  and  gratitude  of  the  country 
whose  servants  and  representatives  these  soldiers  are. 

Then  too  the  Navy  is  removed  from  contact  with  the 
people.  It  is  flying  a  flag  in  foreign  waters.  It  rarely 
if  ever  has  to  exercise  any  authority  in  domestic  troubles. 
There  is  an  indefinite,  elusive  but  influential  impression 
in  the  minds  of  many  that  there  is  something  in  a  regu- 
lar army  inconsistent  with  the  purposes  of  a  republic. 
It  derives  its  force  from  the  uses  to  which  regular  or 
standing  armies  have  been  put  in  maintaining  govern- 
ments over  oppressed  and  helpless  people.  The  election 
of  an  emperor  by  the  Praetorian  Guard,  the  suppression 
of  a  Parliament  by  the  army  under  Cromwell  and  the 
many  other  instances  in  history  in  which  the  will  of  the 
people  has  been  defeated  by  the  trained  soldiery  of  a 
tyrant,  are  used  to  point  the  moral  that  in  a  government 
of  the  people,  by  the  people  and  for  the  people,  a  stand- 
ing army  should  be  looked  upon  with  suspicion  and  re- 
duced to  the  lowest  number.  It  is  doubtless  true  that 
the  enlargement  of  popular  influence  in  all  governments 
has  exercised  a  beneficent  influence  to  reduce  the  prob- 
ability of  war.  Still  there  have  been  many  wars  in  this 
century,  and  not  a  few  of  them  have  proceeded  from  the 
popular  desire  without  encouragement  by  Government 
authority.  Making  every  concession,  therefore,  which 
history  justifies  in  favor  of  the  peaceful  character  and 
tendency  of  a  Republic,  he  is  a  very  unwise  statesman 
who  urges  upon  the  people  a  policy  reducing  the 
efficiency  and  size  of  the  Army  so  as  to  make  the  country 
utterly  helpless  should  emergencies  arise  which  it  is  en- 
tirely reasonable  to  anticipate. 

We  need  an  army  for  three  purposes :  first,  as  essen- 
tial  to   any   satisfactory    system    of   national   defense; 


80       THE  ARMY  OF  THE  UNITED  STATES 

second,  as  an  indispensable  instrument  in  carrying  out 
our  established  international  policy ;  and,  third,  the  sup- 
pression of  insurrection  and  civil  strife. 

In  his  Farewell  Address,  Washington  advised  his 
countrymen  to  remember  "  that  timely  disbursements  to 
prepare  for  danger,  frequently  prevented  much  greater 
disbursements  to  repel  it,"  and  also  advised  them  to 
take  "  care  always  to  keep  themselves,  by  suitable  estab- 
lishments, in  a  respectable  defensive  posture." 

John  Adams,  Washington's  successor  as  President, 
said  that  "  the  national  defense  is  the  cardinal  duty  of  a 
statesman." 

Secondly,  we  have  taken  the  position  with  respect  to 
the  republics  established  in  this  country  in  Central  and 
South  America  and  the  West  Indies,  which  is  approved 
by  both  the  great  national  parties  and  which  has  been 
repeatedly  announced  as  the  policy  of  the  government 
by  various  Presidents  and  Secretaries  of  State.  I  allude 
to  the  Monroe  Doctrine.  There  are  differences  of 
opinion  as  to  what  this  doctrine  includes,  and  as  to 
how  and  with  what  limitations  it  ought  to  be  stated. 
Speaking  generally,  however,  it  is  an  assertion  on  the 
part  of  the  United  States  to  the  European  and  other 
powers  of  the  world  that  no  interference  with  the  Cen- 
tral and  South  American  and  West  Indian  governments 
by  a  European  power  will  be  permitted  which  shall  have 
for  its  object  and  result  the  acquisition  by  a  European 
power  of  the  territory  of  such  nations  for  colonization 
or  territorial  aggrandizement.  This  is  not  a  doctrine 
sustained  by  any  principle  of  international  law ;  it  is  a 
governmental  policy  which  this  government  believes  to 
be  essential  for  its  own  interests  and  well  for  the  in- 
terests of  the  countries  whose  integrity  it  protects. 
Whatever  the  motive,  whatever  the  purpose,  the  asser- 


THE  ARMY  OF  THE  UNITED  STATES       81 

tion  involved  must  rest  for  its  sanction,  not  upon  the 
international  law  acquiesced  in  by  all  civilized  nations, 
but  rather  upon  the  power  to  enforce  it  of  the  nation 
which  asserts  it.  By  virtue  of  this  doctrine  we  in  effect 
and  for  defensive  purposes  extend  the  frontiers  of  the 
United  States  far  beyond  the  actual  confines  of  our 
territory,  to  Central  America  and  the  islands  of  the 
Gulf  of  .Mexico  and  the  Caribbean,  to  the  mouths  of 
the  Orinoco  and  the  Amazon,  to  Magellan  and  Tierra  del 
Fuego.  As  we  assume  the  right,  so  we  must  undertake 
the  responsibility  of  measures  for  the  defense  of  those 
boundaries  whenever,  for  the  purposes  of  disturbing  the 
integrity  of  any  of  the  many  nations  thus  included,  a 
foreign  force  shall  invade  their  borders.  How  could 
we  maintain  such  a  doctrine  if  it  should  ever  be  ques- 
tioned in  the  strenuous  race  for  trade  and  for  coloniza- 
tion that  now  is  rife  among  the  European  powers? 
Could  we  do  it  otherwise  than  by  an  expeditionary  force 
to  the  country  invaded  for  the  purpose  of  assisting  the 
local  forces  in  repelling  the  invader  ?  It  is  true  that  our 
Navy,  enlarged  as  it  is,  would  discharge  a  most  useful 
function  in  the  defense  of  the  invaded  country,  but  it 
would  make  but  little  headway  against  hostile  forces 
landed  therein,  and  after  that,  the  only  method  of  as- 
serting our  international  policy  would  be  by  the  use  of 
the  Army  of  the  United  States. 

Third.  Of  course  there  is  no  probability  of  a  recur- 
rence of  a  great  Civil  War,  but  should  the  forces  of 
anarchy  and  socialism  and  revolt  against  organized 
government  manifest  themselves,  a  well-organized  militia 
would  be  most  necessary.  The  suppression  of  local  dis- 
turbances is  to  the  regular  army  a  very  unpleasant  duty, 
and  it  is  one  to  which  the  President  would  summon  regu- 
lar troops  with  great  reluctance.     An  increase  in  the 


82       THE  ARMY  OF  THE  UNITED  STATES 

efficiency  of  the  militia  which  we  may  anticipate  may 
well  relieve  the  regular  army  of  any  such  duty.  The 
moral  effect  of  a  regular  army,  however,  to  discourage 
lawlessness  is  valuable. 

The  history  of  this  country  since  the  beginning  of 
the  Revolutionary  War  shows  that  during  at  least  one- 
fourth  of  the  life  of  the  country,  the  Government  has 
had  a  war  on  its  hands  in  some  part  of  its  territory. 
It  is  therefore  most  unwise  to  prophesy  as  to  what  may 
happen  in  this  respect  in  the  future.  The  people  of 
this  country  down  to  the  time  of  the  Spanish  War  had 
pursued  a  policy  utterly  ignoring  the  lessons  of  the 
past.  Through  national  parsimony  and  the  prejudice 
against  the  efficiency  of  an  Army,  and  the  making  of 
proper  plans  for  the  organization  of  national  volunteers, 
and  the  drill  and  mobilization  of  the  militia,  we  have  in 
times  past  incurred  great  losses  of  life  and  the  expendi- 
ture of  immense  treasure,  a  large  part  of  both  of  which 
might  have  been  avoided  had  the  proper  and  economical 
measures  been  adopted  for  the  maintenance  of  a  small 
but  efficient  regular  army  and  a  suitable  force  of 
militia. 

This  was  true  of  the  War  of  1812,  of  the  great 
Civil  War,  and  of  the  Spanish  War. 

There  is  a  popular  feeling  that  an  army  in  time  of 
peace  is  not  maintained  and  administered  to  be  used  for 
war,  and  that  the  army  exists  merely  for  show,  like 
the  mace  which  is  carried  before  the  Speaker  of  the 
House  of  Commons,  or  the  truncheon  of  a  field-marshal, 
or  the  scepter  of  a  king.  This  impression  has  led  a 
usually  practical  and  hard-headed  people  like  the  Ameri- 
cans to  the  most  absurd  military  policy.  An  Army  is 
for  war.  If  there  were  no  possibility  of  war,  foreign  or 
domestic,   and   we   could   be   guaranteed   a   continuous 


THE  ARMY  OF  THE  UNITED  STATES       83 

peace,  we  should  disband  the  army ;  but  we  have  not  yet 
arrived  at  this  happy  condition.  We  have  not  yet 
reached  a  point  in  the  progress  of  civilization  when  war 
and  the  fear  of  war  do  not  play  a  large  part  in  determin- 
ing the  policies  of  governments.  The  voice  of  the  United 
States  in  favor  of  international  justice  will  be  much 
more  weighty  if  it  is  known  to  have  a  good  army  and  a 
good  navy  to  enforce  its  views  and  defend  its  rights. 

Now  it  is  a  fact  that  time  is  indispensable  to  the  mak- 
ing of  good  soldiers  and  a  good  army.  Our  own  ex- 
perience should  prevent  us  from  entertaining  any  illusion 
as  to  the  inefficiency  of  a  brave  but  unorganized  people 
to  grapple  successfully  with  another  nation  equally 
brave  but  better  organized.  We  have  great  confidence 
in  ourselves  and  in  our  power  of  quickly  adapting  cir- 
cumstances to  meet  any  national  emergency.  But  this 
should  not  make  us  deliberately  blind  to  the  most  obvious 
military  principles.  We  should  not  be  misled  by  the 
good  luck  which  has  attended  us  in  most  of  our  wars. 
The  most  insidious  argument  against  the  maintenance 
of  an  army  of  present  efficiency  is  that  we  once  had  a 
magnificent  army  of  volunteers  of  a  million  men,  the 
flower  of  which  marched  down  Pennsylvania  Avenue  in  a 
grand  review  under  Grant  and  Sherman ;  and  it  is  asked, 
"  Can  we  not  raise  such  an  army  again?  "  The  awful 
sacrifice  of  life  and  money  which  we  had  to  undergo  dur- 
ing the  four  years  in  order  to  train  this  great  army  is 
forgotten,  and  the  country  is  lulled  into  the  utterly  un- 
founded assurance  that  a  volunteer  enlisted  to-day  or  a 
militiaman  enrolled  to-morrow  can  in  a  week  or  month  be 
made  an  effective  soldier.  There  are  no  better  officers, 
no  better  men  in  any  army  than  we  can  raise  in  America. 
We  are  a  warlike  people.  Most  privates  have  an  in- 
dependence and  self-reliance  that  fit  them  to  adapt  them- 


84       THE  ARMY  OF  THE  UNITED  STATES 

selves  to  different  situations,  and  there  are  no  braver 
men.  But  they  must  know  how  to  shoot  straight,  they 
must  know  how  to  move  at  the  word  of  command,  they 
must  understand  all  the  duties  of  a  soldier  which  grow 
more  complicated  with  modern  guns  and  modern  methods. 
They  cannot  know  it  intuitively.  We  have  no  right  as  a 
nation  to  ask  our  citizens  to  expose  themselves  as  en- 
listed men  in  battle  without  reducing  the  chances  of  dis- 
aster and  death  by  proper  military  education  of  the 
officers  and  proper  military  training  of  the  men. 

I  am  glad  to  say  that  our  experience  in  the  Spanish 
and  Philippine  Wars  has  had  a  most  healthy  effect  upon 
Congress  and  the  people  at  large  with  reference  to  the 
preparation  for  our  national  defense.  After  the  Civil 
War  we  rapidly  reduced  our  armament,  our  navy  and 
our  army.  Our  navy  was  a  collection  of  wooden  frigates 
and  gunboats  that  could  not  stand  for  a  minute  before 
the  newly  invented  high-power  guns,  and  our  coasts, 
though  lined  with  old-fashioned  forts,  were  utterly  de- 
fenseless against  European  navies.  Our  army  was  re- 
duced to  25,000  men,  smaller  in  proportion  to  the  popu- 
lation than  ever  in  the  history  of  the  country.  Slowly 
but  reluctantly  in  the  eighties  we  took  up  the  projects 
of  a  new  navy,  of  new  coast  defenses,  but  the  army  was 
still  continued  until  the  Spanish  War  at  25,000  men. 

In  the  latter  part  of  Mr.  Cleveland's  administration, 
we  asserted  the  Monroe  Doctrine  with  as  much  emphasis 
and  what  might  almost  be  called  "  truculence,"  as  ever 
in  our  history,  and  asserted  it  against  the  greatest  naval 
power  of  the  world.  On  the  very  day  when  Mr.  Cleve- 
land's message  went  into  Congress  demanding  arbitra- 
tion as  to  the  Venezuelan  boundary,  there  was  just  one 
modern  gun  mounted  on  our  whole  Atlantic,  Gulf,  and 
Pacific  coasts. 


THE  ARMY  OF  THE  UNITED  STATES       85 

Since  then,  and  under  the  stress  of  the  Spanish  War, 
we  have  greatly  increased  our  coast  defenses,  so  that 
now  they  are  very  respectable,  both  on  the  Atlantic  and 
Pacific  coasts,  although  they  are  by  no  means  com- 
pleted. Since  then  we  have  constructed  a  Navy  that  in 
point  of  efficiency  is  perhaps  equal  to  any  except  that  of 
Great  Britain.  Since  then  we  have  taken  progressive 
steps  toward  the  organization  of  a  regular  army  which 
is  to-day  much  more  efficient  than  ever  in  the  past,  and 
is  much  more  capable  of  expansion  and  efficient  addi- 
tion. But  much  remains  to  be  done.  If  I  may  trespass 
on  your  patience  a  while  longer,  I  should  like  to  invite 
your  attention  to  the  character  of  the  present  army,  its 
size,  and  its  capacity  for  expansion,  together  with 
needed  measures  to  increase  the  possibility  of  its  being 
made  adequate  and  useful  in  time  of  war. 

The  change  in  the  army,  its  improvement  and  adapta- 
tion to  modern  needs  are  largely  due  to  the  ability, 
energy,  deep  interest  and  enthusiasm  and  well-directed 
effort  of  Elihu  Root,  Secretary  of  War  under  McKinley 
and  Theodore  Roosevelt.  The  legislation  under  which  it 
is  now  maintained  was  almost  all  of  it  drafted  and 
pressed  upon  Congress  by  that  distinguished  statesman. 
Such  legislation  as  has  been  adopted  since  he  laid  down 
his  office  is  only  corollary  to  that  which  he  had  recom- 
mended and  put  through,  suggested  by  actual  experi- 
ence under  his  new  system. 

The  regular  army  of  the  United  States  to-day  is 
limited  in  number  of  enlisted  men  to  100,000,  exclusive 
of  the  hospital  corps  men.  There  is  authority  given  the 
President  to  enlist  upwards  of  50,000  Infantry,  18,000 
Cavalry,  20,000  Coast  Artillery,  6,000  Field  Artillery, 
and  enlisted  men  of  the  Signal  Corps,  the  Engineer 
Corps,  the  Ordnance  Corps,  and  the  other  subsidiary 


86       THE  ARMY  OF  THE  UNITED  STATES 

corps,  together  with  12,000  Philippine  scouts,  who  are 
a  part  of  the  regular  army,  to  make  that  number  about 
114,000  men.  But  this  right  to  increase  the  number  of 
enlisted  men  in  all  the  different  corps  is  limited  by  the 
superior  restriction  that  altogether  they  shall  not  exceed 
100,000  men.  Of  course  the  power  of  the  President  to 
enlist  this  number  of  men  is  subject  to  the  further  limi- 
tation that  Congress  may  withhold  appropriations  to 
pay  more  than  a  certain  number,  so  that  while  he  might 
temporarily  increase  the  force,  his  power  would  practi- 
cally soon  be  at  an  end  on  the  failure  of  Congress  to 
approve  such  an  increase  by  withholding  the  necessary 
money  with  which  to  pay  them  in  the  future.  The  num- 
ber of  men  and  officers  actually  authorized  by  order  of 
the  President  in  the  aggregate  is  in  round  numbers 
76,000  men,  while  the  number  of  officers  and  men  ac- 
tually in  the  army  does  not  reach  60,000.  The  reason 
for  this  difference  between  the  number  authorized  and 
those  actually  in  service  in  the  army  is  the  difficulty 
that  we  have  had  in  recruiting.  The  enlisted  man  to-day 
receives  the  same  pay  which  he  received  in  1861,  to  wit, 
$13  a  month.  This  is  not  enough  to  attract  him,  al- 
though of  course  it  does  not  at  all  measure  the  actual 
compensation  which  he  receives,  because  he  is  fed  and 
well  clothed  and  well  housed.  Still  there  ought  to  be  an 
increase  over  the  wages  which  were  received  by  him 
thirty  years  ago. 

A  still  greater  defect  in  the  present  system  of  com- 
pensation in  the  army  is  the  failure  to  pay  the  non-com- 
missioned officers,  the  sergeants  and  corporals,  a  suffi- 
cient salary  to  make  them  permanent  members  of  the 
army.  They  are  in  a  sense  the  disciplinary  backbone 
of  the  army.  They  are  the  ones  who  whip  the  recruits 
into  service  and  make  good  soldiers  of  them.     They  are 


THE  ARMY  OF  THE  UNITED  STATES       87 

the  ones  who  come  much  more  intimately  into  contact 
with  the  men  than  do  the  commissioned  officers,  and 
their  pay  should  be  made  much  nearer  to  that  of  the 
commissioned  officers  than  it  is  to-day.  I  am  glad  to  say 
that  a  bill  is  now  pending  in  the  House,  which  has  passed 
the  Senate,  giving  an  adequate  increase  in  the  pay  of 
the  enlisted  men  of  the  different  branches  of  the  army, 
which  I  .hope  and  believe  will  relieve  us  greatly  in  the 
matter  of  our  recruiting,  and  enable  us  to  fill  up  the 
army  to  the  quota  authorized  by  the  President.  We  are 
striving  in  every  way  to  remove  from  the  life  of  the 
private  soldier  those  features  of  it  which  tend  to  dis- 
courage reenlistment,  and  with  the  increased  pay,  we 
hope  that  we  may  make  the  life  of  an  enlisted  man  a 
comparatively  attractive  one. 

In  order  properly  to  discuss  the  army,  we  should 
divide  it  into  two  forces,  the  mobile  and  the  immobile 
army.  The  mobile  army  is  that  which  may  be  sent  into 
any  part  of  the  United  States  or  of  the  world  as  an  ex- 
peditionary force.  It  consists  of  the  Infantry,  the 
Cavalry,  the  Field  Artillery,  the  engineers  and  the  sig- 
nal corps,  with  a  suitable  part  of  the  hospital  corps ; 
and  it  is  divided  into  tactical  units,  regiments,  brigades, 
divisions  and  army  corps.  The  immobile  army  is  the 
coast  artillery,  the  duty  of  which  is  confined  to  manning 
the  guns  of  the  coast  defenses  and  operating  submarine 
mines,  torpedoes,  searchlights  and  power  plants  used 
in  connection  with  the  defenses  of  all  fortified  harbors 
of  the  United  States.  The  authorized  force  of  the  coast 
artillery  is,  in  round  numbers,  20,000.  Of  this  5,000 
are  necessary  to  operate  the  submarine  mines,  torpedoes, 
searchlights  and  power  plants.  This  leaves  a  little  over 
14,000  for  the  manning  of  all  guns  now  mounted  in  the 
fortifications  of  the  entire  country. 


88       THE  ARMY  OF  THE  UNITED  STATES 

In  order  to  man  these  guns  with  one  shift  of  men, 
there  are  required  37,000  enlisted  men,  so  that  the  maxi- 
mum number  of  men  authorized  to-day  available  for  man- 
ning guns  would  be  about  4,000  less  than  one-half  of  a 
complete  manning  detail.  When  our  coast  defenses  are 
completed,  as  they  are  now  projected,  both  in  this  coun- 
try and  in  our  insular  possessions,  and  at  Panama,  the 
number  of  men  required  for  one  complete  manning  detail 
both  for  the  mines,  searchlights,  power  plants  and  guns 
will  be  55,000.  In  war  this  would  have  to  be  consider- 
ably increased,  because  one  detail  would  hardly  be 
enough.  As  it  is,  under  existing  circumstances  we  have 
only  20,000,  where  we  need  37,000  for  a  complete  detail. 
It  is  now  proposed  and  seems  to  be  practicable,  to  make 
up  the  deficit  in  this  manning  detail  by  training  a 
militia  coast  artillery  to  man  the  guns  of  the  coast  de- 
fenses. The  idea  has  been  suggested  to  the  state  au- 
thorities, and  in  many  of  the  states  along  the  coast  mili- 
tia companies  have  been  organized  for  this  purpose.  It 
offers  an  opportunity  for  service  to  men  who  do  not 
wish  to  go  far  from  their  homes,  and  yet  who  would  be 
glad  to  be  enrolled  in  the  ranks  of  the  defenders  of  their 
country  when  she  is  in  danger,  and  are  willing  to  devote 
the  necessary  month  or  six  weeks  of  each  year  to  the 
training  necessary  to  render  them  efficient  for  the  pur- 
pose. In  time  of  war  they  might  be  willing  to  enlist 
in  the  regular  coast  artillery  during  the  war  and  thus 
make  up  the  regular  detail  which  is  essential  to  the 
effectiveness  of  our  coast  defenses.  Taking  away 
20,000  from  the  authorized  strength  of  the  army  for 
the  immobile  force,  it  leaves  55,000  as  a  mobile  army 
under  the  present  quota  authorized  by  the  President,  or 
80,000  for  a  mobile  army  if  the  President  were  to  in- 
crease the  authority  to  enlist  to  100,000  men.    There  are 


THE  ARMY  OF  THE  UNITED  STATES       89 

30  regiments  of  Infantry,  15  regiments  of  Cavalry,  6 
regiments  of  Field  Artillery,  two  regiments  of  engineers, 
and  two  regiments  of  the  signal  corps.  This  by  no 
means  represents  the  proper  proportion  for  an  army  in 
the  field.  For  an  army  in  the  field  the  Cavalry  ought 
not  to  exceed  10  per  cent,  of  the  total  force  of  which 
the  Infantry  will  represent  more  than  80  per  cent.  It 
will  be  necessary  to  amend  the  law  distributing  the 
Cavalry  so  as  to  double  the  number  of  cavalry  regiments 
and  reduce  each  regiment  to  six  troops,  instead  of  twelve 
as  now  constituted,  because  in  no  army  in  the  world  but 
ours  does  the  regiment  of  Cavalry  have  more  than  six 
troops.     Most  of  them  have  but  five. 

The  drain  upon  the  army  by  sending  5,000  troops  to 
Cuba  and  12,000  troops  to  the  Philippines,  is  such  that 
there  must  be  an  increase  in  the  Infantry  regiments. 
Whether  this  shall  involve  an  increase  in  the  actual 
number  of  Infantry  or  only  divide  them  into  more  regi- 
ments is  a  question  which  it  is  not  necessary  at  present 
to  discuss.  But  certainly  there  ought  to  be  more  regi- 
ments of  Infantry  in  view  of  the  constant  necessity  for 
changing  their  tours  of  duty  from  the  United  States  to 
the  Philippines  and  from  the  United  States  to  Cuba. 

The  separation  of  the  Coast  Artillery  from  the  Field 
Artillery,  effected  by  the  law  of  last  year,  has  been  a 
move  in  the  right  direction  and  a  great  improvement. 
There  was  no  logical  connection  between  the  duties  of 
those  engaged  in  our  coast  defences  and  the  manning 
and  use  of  the  great  guns  of  the  fortifications  and  the 
drill  and  tactics  of  the  Field  Artillery.  The  latter  be- 
long to  the  mobile  army  just  exactly  as  the  infantry 
and  cavalry  do,  and  they  are  now  placed  where  they 
belong. 

We  are  attempting  to  enlarge  posts  so  that  we  shall 


90       THE  ARMY  OF  THE  UNITED  STATES 

have  brigade  posts,  with  the  tactical  unit  of  a  brigade 
for  maneuvers  under  general  officers  and  with  the 
brigade  discipline  and  drill  which  prepare  the  men  and 
officers  for  field  work  in  large  maneuvers.  All  this  prog- 
ress is  slow  but  it  is  being  made. 

One  of  the  greatest  improvements  which  has  been  made 
in  our  Army  is  in  the  graduate  education  of  its  officers. 
West  Point  is  as  thorough  a  school  for  general  military 
education  as  there  is  in  the  world,  and  this  has  been  long 
established.  The  great  improvement,  however,  in  the 
education  of  our  officers  in  the  last  decade  has  been  the 
institution  of  graduate  schools  in  the  different  branches 
of  the  service.  Officers  are  now  studying  in  garrison 
schools,  and  then  are  offered  the  opportunity,  if  they 
show  themselves  fit,  of  taking  a  course  in  the  Artillery 
School  at  Fortress  Monroe,  in  the  Engineers'  School  at 
Washington,  in  the  Infantry  and  Cavalry  School  at 
Fort  Leavenworth,  or  in  the  Cavalry  School  of  Equita- 
tion at  Fort  Riley,  according  to  their  respective 
branches.  Then  if  they  succeed  by  competition  in  es- 
tablishing their  right  to  do  so  they  are  enabled  to  take 
a  course  at  the  Staff  College  at  Leavenworth.  Selected 
from  all  the  Army  are  the  most  likely  young  officers  for 
the  War  College  at  Washington,  where  they  are  engaged 
in  working  out  problems  of  grand  strategy. 

The  other  great  improvement  in  the  Army  has  been 
the  establishment  of  a  General  Staff,  consisting  of  men 
selected  by  a  board  of  general  officers  without  consulta- 
tion with  the  President  or  the  Secretary  of  War  for  their 
fitness,  who  act  as  advisers  to  the  Chief  of  Staff  and  to 
the  Secretary  of  War,  and  whose  business  it  is  to  recom- 
mend policies  and  to  make  plans  for  defense  and  for 
possible  campaigns.  The  Chief  of  Staff  and  the  General 
Staff  coordinate  all  the  Bureaus  of  the  Army  and  pre- 


THE  ARMY  OF  THE  UNITED  STATES       91 

serve  a  consistent  policy  without  respect  to  changing 
Secretaries  and  the  changing  personnel  of  the  general 
officers.  The  systems  of  education  and  of  the  General 
Staff  have  been  in  operation  now  for  several  years,  and 
fully  justify  the  hopes  of  those  who  brought  about  these 
two  reforms. 

There  is  a  dearth  of  officers.  We  have  only  about 
3,600  officers,  and  so  many  are  detailed  on  important 
duties  connected  with  military  schools,  with  militia,  with 
teaching  at  West  Point,  with  the  graduate  schools  in  the 
Army,  and  with  the  recruiting  service  and  on  the  General 
Staff,  that  a  bill  has  passed  the  Senate  authorizing  the 
increase  of  officers  by  something  over  600.  This  will  en- 
able us  to  detail  officers  to  take  charge  of  the  militia  in 
every  state  and  to  remain  permanently  on  duty  with  the 
National  Guard,  and  thus  make  it  possible  to  make  the 
discipline  of  the  National  Guard  like  that  of  the  regular 
army. 

This  brings  me  to  the  great  improvement  which  has 
been  made  by  recent  legislation  in  respect  to  the  militia. 
By  the  "  Dick  Bill,"  which  was  introduced  in  Congress 
by  the  then  Representative  and  now  Senator  Dick,  and 
which  passed  in  1902,  the  National  Guard  became  recog- 
nized as  the  organized  militia  of  the  state,  subject  to 
call  by  the  general  government  and  entitled  to  arms, 
ammunition,  clothing,  supplies  and  transportation,  in 
case  it  organized  and  adopted  the  discipline  of  the 
regular  army. 

Another  bill  is  now  pending  which  is  likely  to  pass 
increasing  the  benefits  to  be  derived  by  the  National 
Guard,  enlarging  the  time  of  service  and  the  character 
of  service,  under  direction  of  the  Federal  authorities, 
and  authorizing  a  continuance  of  the  joint  maneuvers 
between  the  regulars  and  the  militia  which  have  already 


92       THE  ARMY  OF  THE  UNITED  STATES 

proven  to  be  successful  and  have  developed  an  intense 
enthusiasm  and  interest  on  the  part  of  the  state  soldiers. 
In  the  course  of  five  or  six  years  we  may  count  on  having 
a  well-disciplined  force  of  organized  militia,  subject  to 
call  by  the  President,  amounting  to  120,000,  so  that  we 
might  be  sure  of  putting  in  the  field  on  short  notice  an 
army  of  200,000  men.  This  would  not  be  enough,  and 
we  should  have  to  resort  to  a  volunteer  law  which  has 
been  introduced  in  Congress,  and  which  I  hope  will  pass, 
preparing  for  the  organization  of  volunteers  under 
regular  officers  and  officers  of  the  National  Guard,  which 
shall  constitute  a  third  or  volunteer  force  of  the  United 
States  Army. 

A  bill  is  now  pending  in  Congress  also  authorizing 
the  employment  upon  a  small  stipend  for  a  drill  every 
two  years,  of  men  who  have  served  in  the  regular  army 
and  been  discharged,  as  a  reserve  corps  out  of  which  the 
regular  army  could  be  enlarged  at  once  in  case  war 
were  declared  or  threatened.  This  would  enable  us  to 
increase  the  regular  army  to  150,000  men  without  great 
difficulty,  and  would  secure  us  250,000  well  equipped, 
well  drilled  soldiers  of  the  Republic.  This  plan  for  a 
small  army,  capable  of  rapid  expansion,  is  perfected 
but  not  carried  out  fully  in  legislation.  I  am  glad  to 
say,  however,  that  Congress  manifests  such  an  interest 
in  the  development  of  the  Army  and  a  willingness  from 
time  to  time  to  improve  the  various  branches  that  dur- 
ing the  next  decade  I  feel  confident  that  we  shall  soon 
have  a  regular  army  and  a  reserve  citizen  soldiery  suffi- 
cient to  put  into  the  field  250,000  men  capable  of  carry- 
ing on  war  with  courage  and  efficiency.  Of  course  in  the 
support  of  such  an  army  the  Republic  is  subjected  to 
very  heavy  expense,  because  the  whole  army,  both  regu- 
lar, militia  and  volunteers,  are  volunteers  and  must  re- 


THE  ARMY  OF  THE  UNITED  STATES       93 

ceive  compensation  sufficient  to  enable  them  to  live  and 
support  somebody  beside  themselves. 

We  do  not  raise  the  armies  by  conscription  except  in 
the  very  last  resort.  As  a  consequence,  our  armies  are 
vastly  much  more  expensive  than  the  European  armies 
even  in  time  of  peace.  Our  regular  army  to-day  of 
60,000  men  costs  us  about  $72,000,000  a  year.  France 
maintains  an  army  of  546,000  men,  and  it  costs  her 
$133,000,000  a  year.  Germany  maintains  an  army  of 
646,000  men,  and  it  costs  her  $144,000,000  a  year.  In 
other  words,  France  has  an  army  nine  times  the  size  of 
ours  which  it  costs  her  less  than  twice  the  sum  to  main- 
tain, while  Germany  has  an  army  ten  times  as  large  as 
ours  which  it  costs  her  just  about  double  our  sum  to 
maintain.  In  addition  to  this  we  are  paying  out  pen- 
sions for  our  Civil  War  and  Spanish  War  veterans  of 
$150,000,000.  In  view  of  this  it  is  entirely  natural  for 
the  representatives  of  the  people  in  Congress  to  hesitate 
to  increase  a  military  establishment  so  expensive  as  com- 
pared with  other  nations.  The  lesson  from  the  pension 
fund,  however,  instead  of  being,  as  it  is  thought  to  be, 
a  restraint  upon  expenditure  to  secure  an  efficient  army, 
ought,  if  historically  and  critically  considered,  to  be  a 
warning  against  the  lack  of  preparation,  for  the  ex- 
tent of  that  pension  roll  is  itself  the  greatest  exponent 
of  the  fatuity  of  a  policy  of  insufficient  national  defense. 

A  short-sighted  parsimony  with  respect  to  an  efficient 
army,  which  might  suppress  a  rebellion  or  end  a  foreign 
war  in  a  short  time,  leads  to  the  raising  of  enormous 
fresh  levies  of  unskilled  troops  and  the  expenditure  of 
great  treasure  which  might  have  been  avoided.  After 
the  emergency  arises,  and  when  it  is  too  late  for  economi- 
cal preparation,  then  the  Legislature  opens  the  Treas- 
ury by  appropriations  and  provisions  of  the  greatest 


94       THE  ARMY  OF  THE  UNITED  STATES 

liberality  to  meet  the  necessities  which  only  time  and 
thorough  preparation  could  properly  and  economically 
meet. 

I  do  not  think  that  I  can  close  this  address  by  any 
words  more  appropriate  than  those  of  Washington  while 
he  was  President  when  he  said: 

"  The  United  States  ought  not  to  indulge  a  persuasion 
that,  contrary  to  the  order  of  human  events,  they  will 
forever  keep  at  a  distance  those  painful  appeals  to  arms 
with  which  the  history  of  every  nation  abounds. 

"  There  is  rank  due  to  the  United  States  among  na- 
tions, which  will  be  withheld,  if  not  absolutely  lost,  by 
the  reputation  of  weakness. 

"  If  we  desire  to  avoid  insult,  we  must  be  able  to 
repel  it. 

"  If  we  desire  to  secure  peace,  one  of  the  most  power- 
ful instruments  of  our  rising  prosperity,  it  must  be 
known,  that  we  are,  at  all  times,  ready  for  war." 


THE  PANAMA  CANAL 

at  the  meeting  of  the  ohio  state  bar  association, 
put-in-bay,  july  11,  1906 

Ladies  and  Gentlemen,  Members  of  the  Ohio  Bar: 
It  is  a  great  pleasure  to  renew  my  acquaintance  with 
members  of  the  profession,  and  especially  members  of 
the  profession  of  my  own  state. 

It  was  not  as  easy  as  it  might  be  for  me  to  fill  this 
engagement,  though  it  was  of  a  year's  standing,  and 
I  must  apologize  to  the  members  of  the  profession  for  not 
taking  up  a  legal  subject.  But  if  you  will  take  a  man 
as  your  speaker  this  afternoon  who  has  forgotten  about 
all  the  law  he  knew,  you  must  expect  him  to  select  some 
subject  that  is  rather  easier  to  him  than  sound  law. 

While  you  are  lawyers  and  lawyers'  wives,  you  are  also 
Americans,  and  you  are  certainly  interested  in  the  great 
project  that  the  United  States  has  assumed  to  carry 
through — the  union  of  the  two  oceans  by  a  canal  across 
the  Isthmus  of  Panama.  The  enterprise  has  been  a 
subject  of  consideration  almost  since  the  Isthmus  of 
Panama  and  the  Pacific  were  discovered;  and  I  be- 
lieve one  of  the  first  suggestions  in  the  sixteenth  century 
was  the  construction  of  a  sea-level  canal.  We  had  to 
wait  something  more  than  three  hundred  years  before  a 
real  attempt  could  be  made  to  do  that  which  has  been  in 
the  minds  of  men  so  long. 

There  were  three  routes  suggested.  One  was  the  so- 
called  San  Bias  route,  the  shortest  of  all  proposed.  It 
is  only  thirty  miles  from  shore  to  shore,  and  a  large 
part  of  that  on  the  Atlantic  side  could  be  located  in 

95 


96  THE  PANAMA  CANAL 

the  bed  of  the  San  Bias  River,  but  the  difficulty  with 
the  route  is  that  right  in  the  middle  of  it  is  a  mountain 
fifteen  hundred  feet  high.  The  advocates  of  the  route 
proposed  a  ship  tunnel  some  five  miles  long,  one  hun- 
dred and  fifty  feet  high,  and  from  one  hundred  and 
fifty  to  two  hundred  feet  in  width.  If  the  mountain 
were  granite,  if  it  were  solid  rock,  the  proposition  would 
be  more  feasible  than  it  is.  According  to  our  best  infor- 
mation, the  mountain  instead  of  being  granite,  instead 
of  being  solid  so  that  when  pierced  it  would  hold  the 
shape  of  the  projected  tunnel  without  support,  is  prob- 
ably of  a  volcanic  and  friable  nature,  such  as  to  require 
the  making  of  a  supporting  arch,  and  an  arch  of  that 
extent,  five  miles  long,  one  hundred  and  fifty  feet  high 
and  two  or  three  hundred  feet  wide,  is  as  yet  beyond 
practical  -engineering  accomplishment. 

The  other  route,  that  is,  other  than  the  Panama  route, 
is  the  Nicaragua  route,  which  has  the  advantage  of  the 
lowest  natural  level  and  a  natural  lake  at  that  level, 
through  which  a  channel  could  be  dredged.  The  level 
of  the  water  in  the  lake  above  the  sea  is  one  hundred  and 
ten  feet.  But  the  route  has  the  disadvantage  of  greater 
length,  one  hundred  and  thirty-seven  miles,  and  also  the 
disadvantage  of  a  river — the  San  Juan  River — floods  in 
which  would  have  a  dangerous  tendency  to  swamp  any 
canal  that  might  be  constructed. 

The  most  practical  route — and  that  which  Congress 
has  settled  upon — is  the  Panama  route.  This  passes 
over  the  continental  divide,  between  the  two  oceans  at 
Culebra  Hill.  With  the  exception  of  Nicaragua,  this  is 
the  lowest  natural  continental  divide  between  Alaska  and 
Patagonia.  Originally  Culebra  Hill,  through  which  the 
cut  is  to  be  made,  was  three  hundred  and  forty  feet 
high.     It  has  been  reduced  by  the  French  so  that  the 


THE  PANAMA  CANAL  97 

present  level  of  the  lowest  part  of  the  cut  is  about  one 
hundred  and  forty  feet  above  sea  level.  The  diffi- 
culty with  this  route  is  the  very  extended  excavation 
necessary,  and  even  a  greater  difficulty  is  the  control 
of  the  Chagres  River. 

De  Lesseps,  after  he  had  completed  the  Suez  Canal, 
came,  fresh  with  that  victory,  to  build  the  canal  at 
Panama, 'and  his  plan,  not  settled  upon  by  careful  con- 
sultation of  engineers,  but  reached  in  the  enthusiasm  of 
an  arduous  work  done,  was  for  a  sea-level  canal.  He 
attempted  it  and  spent  two  hundred  and  forty-seven 
millions  of  dollars,  but  his  effort  proved  to  be  a  failure. 
His  projected  canal  was  seventy-two  feet  wide  and 
twenty-nine  and  one-half  feet  deep — a  sea-level  canal. 
You  will  all  remember  the  disastrous  result,  the  break- 
ing up  of  the  company,  the  liquidation,  the  bankruptcy 
and  finally  the  transfer  of  the  assets  to  a  new  French 
Panama  Canal  Company  that  called  together  a  com- 
mittee of  engineers — indeed,  called  together  two  com- 
mittees of  engineers — who  went  into  the  subject  of  the 
proper  type  of  canal  with  great  care  and  proposed 
the  construction  of  a  lock-canal.  The  lock-canal  pro- 
posed was  sixty  feet  above  sea  level.  It  was  to  be  a  sea- 
level  canal  to  Bohio,  a  place  thirteen  miles  from  the 
Atlantic  shore  where  a  dam,  lake  and  flight  of  locks  were 
to  be  made.  The  canal  was  thence  to  be  carried  clear 
across  the  Isthmus  at  a  level  of  sixty  feet  to  within  four 
miles  of  the  Pacific,  where  the  sea  level  was  to  be  reached 
again  by  a  flight  of  locks.  The  French  Panama  Canal 
Company  continued  the  work  under  this  plan,  but  finally 
that  company  also  ceased  energetic  work  because  its 
money  gave  out  and  it  continued  thereafter  only  desul- 
tory attacks  upon  the  problem. 

In  1899  the  Isthmian  Canal  Commission  was  appointed 


98  THE  PANAMA  CANAL 

by  the  government  of  the  United  States  to  make  recom- 
mendations, and  they  considered  the  matter  from  1899 
to  1902.  They  first  recommended  the  Nicaragua  Canal, 
because,  after  consultation  with  the  French  Panama 
Canal  Company,  they  considered  that  the  price  de- 
manded was  much  too  high.  Subsequently,  however,  in 
January,  1902,  the  new  French  Panama  Canal  Com- 
pany telegraphed  to  say  that  it  would  sell  all  that  it 
had  there,  which  had  cost  upwards  of  two  hundred  and 
fifty  millions  of  dollars,  for  forty  million  dollars,  includ- 
ing its  stock  in  the  Panama  Railroad  Company,  of 
which  it  owned  sixty-nine  seventieths  of  the  entire  issue. 
On  June  28,  1902,  Congress  passed  the  Spooner  Act, 
which  gave  preference  to  the  Panama  Canal  route  over 
the  Nicaragua  route,  and  thereupon  Mr.  Hay  made  a 
treaty  with  Senor  Herran,  of  Colombia,  by  which  the 
right  of  way  contemplated  in  the  Spooner  Act,  for  which 
ten  million  of  dollars  was  to  be  paid,  was  granted  across 
the  Isthmus  along  the  line  of  the  canal  as  projected.  I 
need  not  rehearse  the  history  of  that  treaty,  the  failure 
of  the  Colombian  Senate  to  ratify  it,  the  revolution  in 
Panama,  the  establishment  of  the  new  Republic  of 
Panama  and  the  subsequent  making  of  a  treaty  between 
the  United  States  and  Panama  by  Mr.  Hay  and  Mr. 
Buneau-Varilla,  and  its  ratification  by  the  Senate. 
Panama,  by  this  treaty,  conveyed  not  only  a  right  of 
way  for  the  construction  and  maintenance  of  the  canal, 
as  the  Colombian  treaty  provided,  but  also  a  zone  for 
governmental  purposes  of  ten  miles  in  width,  five  miles 
on  each  side  of  the  axis  of  the  canal,  and  forty  miles 
from  shore  to  shore,  together  with  governmental  control 
over  the  harbors  and  any  additional  part  of  the  Isthmus 
that  in  addition  to  the  ten  miles  it  may  become  necessary 
to  take  in  order  to  complete  the  canal.     This  is  a  most 


THE  PANAMA  CANAL  99 

important  gain  for  the  United  States  in  the  substitu- 
tion of  the  Panama  treaty  for  the  Colombian  treaty,  be- 
cause governmental  control  of  the  canal  strip  is  vital  in 
securing  proper  sanitation  and  police  regulation. 

The  Spooner  Act  does  not  specify  exactly  what  kind 
of  a  canal  shall  be  constructed.  It  directs  the  President 
to  construct  a  canal  and  the  necessary  locks  and  other 
appurtenances.  It  provides,  however,  for  the  issue  of 
one  hundred  and  thirty-five  million  dollars  of  bonds  that 
are  to  furnish  the  means  by  which  the  canal  can  be 
constructed.  At  the  time  that  act  was  passed,  the  then 
Isthmian  Canal  Commission  had  recommended  a  lock- 
canal  and  had  reported  to  Congress  that  it  would  cost 
one  hundred  and  forty -five  millions  of  dollars.  This 
act  provides  ten  millions  in  cash  for  preliminary  work 
and  one  hundred  and  thirty-five  millions  in  bonds,  so 
that  it  is  evident  that  Congress  had  in  mind  the  con- 
struction of  a  lock-canal,  according  to  the  plan  recom- 
mended. The  language  of  the  act,  however,  as  I  have 
said,  directs  the  President  to  construct  a  canal  and 
therefore,  of  course,  every  lawyer  knows  that,  in  order 
that  he  may  execute  the  mandate,  he  is  impliedly  given 
the  power  to  determine  what  the  type  of  the  canal 
shall  be. 

The  President  appointed,  in  the  spring  of  1904,  after 
the  ratification  of  the  treaty,  an  Isthmian  Canal  Com- 
mission under  the  terms  of  the  act  and  directed  that 
Commission  to  convene  and  consult  distinguished  engi- 
neers who  should  report  upon  the  type  of  the  canal. 

In  the  transfer  there  were  conveyed  the  machinery, 
sixty-nine  seventieths  of  the  stock  of  the  railroad  and 
all  the  land  and  right  of  way  owned  by  the  Canal  Com- 
pany. There  are  some  machine  shops  that  are  valu- 
able.     The   railroad   is   valuable   and   of  course  indis- 


100  THE  PANAMA  CANAL 

pensable  to  the  construction  of  the  canal.  There  are 
twenty-one  hundred  houses  for  residences  of  the  em- 
ployees of  the  canal,  and  there  are  three  or  four  very 
extensive  hospitals,  but  as  all  of  these  had  stood  in  the 
torrid  zone  for  eight  or  ten  years,  with  very  little  done 
to  them,  they  were  in  a  bad  state  of  repair  and  needed 
much  work  to  make  them  habitable  and  sanitary.  In  the 
first  place,  we  could  not  invite  anybody  to  go  there 
unless  we  made  it  a  place  in  which  people  from  the 
temperate  zone  could  safely  live.  The  construction  of 
the  Panama  Railroad  and  also  of  the  Panama  Canal 
down  to  the  period  when  we  went  there  had  been  at- 
tended with  great  loss  of  life  from  yellow  fever  and 
malaria.  The  first  matter  that  we  had  to  take  up  was 
the  question  of  health  on  the  Isthmus.  The  gentleman 
who  had  been  in  charge  of  Havana  when  the  yellow  fever 
was  stamped  out — Colonel  Gorgas — was  put  in  charge 
at  Panama,  and  he  based  all  his  plans  for  action  on 
the  mosquito  theory  of  the  transmission  of  yellow  fever. 
There  has  been  a  good  deal  of  fun  made  of  that  theory, 
but  Colonel  Gorgas,  by  two  years9  work,  has  vindicated 
the  wisdom  of  his  confidence  in  the  theory.  It  may  be 
that  the  disease  is  transmitted  by  other  means  than  mos- 
quitoes, but  certainly  it  is  transmitted  by  mosquitoes, 
and  when  we  prevent  the  mosquitoes  from  getting  at  yel- 
low fever  patients  so  that  the  mosquitoes  cannot  catch 
the  yellow  fever,  we  save  the  persons  whom  they  sting 
from  contracting  the  disease.  We  have  had  yellow 
fever  on  the  Isthmus,  but  by  isolation  of  yellow  fever 
patients  and  by  fumigation  and  destroying  the  particu- 
lar kind  of  mosquito  that  carries  the  disease,  we  have 
really  stamped  out  the  disease.  The  mosquito  that 
transmits  yellow  fever  does  not  fly  very  far  and  likes 
damp  places  in  old  houses.     He  does  not  breed  in  lakes 


THE  PANAMA  CANAL  101 

outside,  but  he  breeds  in  pools  of  water  in  dark  cellars 
and  in  uncleanly  houses,  and  therefore  the  fumigation  of 
the  houses  is  a  very  effective  way  of  destroying  this 
transmitter  of  the  disease.  It  is  different  with  respect 
to  the  malarial  mosquito.  He  breeds  in  pools  in  the 
field,  and  the  method  of  preventing  his  generation  and 
increase  is  by  draining  possible  breeding  places,  and, 
when  this'is  impossible,  by  spreading  oil  over  such  pools. 

The  strip  is  forty  miles  long  and  is  used  for  about  a 
half-mile  in  width,  and  through  that  strip  four  or  five 
thousand  employees  of  the  health  department  are  em- 
ployed daily  in  draining  marshes,  in  cutting  down  the 
vegetation  and  in  spreading  oil  over  the  waters  that 
cannot  be  drained.  In  this  way,  much  good  has  been 
done  in  reducing  the  amount  of  malaria. 

We  are  not  quite  so  well  situated  with  respect  to 
malaria  as  we  are  to  yellow  fever.  So  far  as  mosquitoes 
are  concerned,  all  the  natives,  at  least  those  who  live 
on  the  sea  coast,  are  immune  from  yellow  fever.  The 
disease  attacks  only  the  men  that  come  from  the  high- 
lands or  the  Americans  or  the  Europeans  that  go  there. 
The  cases  of  yellow  fever,  even  in  an  epidemic,  therefore, 
are  few,  as  compared  with  the  whole  population  and 
offer  few  opportunities  to  the  transmitting  mosquito  for 
taking  in  the  poisonous  germs.  In  respect  to  malaria, 
however,  the  case  is  very  different.  About  sixty-five 
or  seventy  per  cent,  of  all  the  natives  on  the  Isthmus 
and  of  all  the  blacks  that  come  from  the  surrounding 
islands,  are  infected  with  malaria,  and  of  course,  we 
cannot  isolate  them  from  mosquitoes  that  settle  on  them 
and  take  the  malarial  germ  from  their  victims.  It  does 
seem,  therefore,  an  almost  impossible,  a  hopeless  task,  to 
prevent  the  spread  of  malaria  when  sixty-five  or  seventy 
per  cent,  of  the  people  are  infected  with  it  at  any  rate, 


102  THE  PANAMA  CANAL 

and  yet  by  Colonel  Gorgas'  methods,  already  described, 
great  improvement  has  been  made. 

Of  course,  if  we  would  have  health  we  must  have 
proper  houses.  These  twenty-one  hundred  houses  have 
to  be  increased  in  number  because  we  have  in  our  em- 
ployment from  twenty-two  to  twenty-five  thousand  men, 
and  we  have  to  take  care  of  their  families,  which  run 
up  the  class  of  new  settlers  to  nearly  double  that 
number.  The  reconstruction  of  the  houses  has  involved 
much  time  and  labor.  So,  too,  we  have  to  give  them 
good  water.  We  had  to  put  in  a  complete  water  supply 
for  the  city  of  Panama  and  the  city  of  Colon,  and  for 
the  sixteen  or  seventeen  towns  between.  We  have  to 
drain  every  town  by  a  system  of  sewers,  and  then  we 
have  to  increase  the  hospital  resources  so  that  now  we 
can  take  care  of  about  one  thousand  in  each. 

All  these  are  preparations  before  the  "  dirt  begins  to 
fly."  The  American  people  want  everything  the  next 
morning,  and  if  they  do  not  get  it  they  are  not  entirely 
reasonable  in  their  complaints.  But  the  truth  is  that 
the  way  to  carry  on  a  great  enterprise  like  this  is  to 
get  really  ready  before  you  begin.  Mr.  James  J.  Hill, 
one  of  the  greatest  railway  constructors  of  the  world, 
told  me  that  he  worked  two  years  making  preparations 
before  he  put  a  spade  into  the  ground  in  building  the 
Great  Northern  Railway.  He  said  to  me :  "  The  trouble 
with  you  and  the  President  will  be  that  you  will  be  under 
more  or  less  pressure  of  public  opinion  to  make  appear- 
ance of  doing  the  work  of  actual  construction  and  will 
be  pushed  into  beginning  construction  before  you  are 
ready."  There  has  been  a  very  great  pressure  to  go  on 
and  make  the  dirt  fly.  Everybody  wants  to  know, 
"Well,  are  you  digging  the  canal?"  Well,  we  are 
digging  dirt,  but  it  is  not  the  work  of  construction — it 


THE  PANAMA  CANAL  103 

is  work  of  preparation.  We  are  just  about  ready  to 
begin  actual  construction. 

We  found  on  the  Isthmus  a  single-track  railroad  with 
an  excellent  roadbed,  but  with  very  little  else  adapted 
to  the  tremendous  work  of  transportation  that  has  to  be 
done.  The  great  problem  is  the  disposition  of  the  ma- 
terial that  is  taken  out  of  the  trench  that  is  dug.  We 
cannot  put  it  anywhere  except  where  it  will  not  flow 
back  into  the  canal  under  the  influence  of  heavy  rains 
or  will  not  be  in  our  way  when  we  are  building  the 
works  of  construction,  and,  therefore,  we  have  to  take  a 
great  deal  of  that  soil  fourteen  or  fifteen  miles  either 
way  from  where  it  is  dug.  We,  therefore,  have  to 
double-track  the  railroad ;  then  we  have  to  increase  the 
terminal  facilities  in  order  that  the  equipment  and  sup- 
plies can  be  landed  and  carried  promptly  to  the  place 
where  they  are  to  be  used  and  set  up. 

Then,  in  addition  to  the  terminals,  in  addition  to 
dredging  out  the  harbor  so  that  the  vessels  can  reach 
the  terminals,  we  have  to  construct,  especially  in  the 
Culebra  cut,  what  are  called  spur  tracks,  running  from 
the  line  of  the  railroad  to  the  point  where  the  excavation 
is  to  be  made  by  steam  shovels.  The  spur  tracks  run 
along  levels,  constructed  in  such  a  way  into  the  cuts  that 
the  excavated  material  will  always  be  delivered  down 
hill  on  one  side  or  the  other.  The  length  of  the  spur 
tracks  of  that  sort  to  be  constructed  at  different  times 
is  calculated  to  be  about  three  hundred  miles.  The  levels 
are  being  now  made.     The  tracks  are  being  made. 

In  order  to  work  them  in  the  Culebra  cut,  we  have 
now  on  hand  about  sixty-nine  steam  shovels.  But  we 
cannot  put  them  into  operation  all  at  once.  We  have 
to  work  them  in  gradually.  We  hope  to  put  as  many 
as  one  hundred  steam  shovels  into  operation  under  such 


104  THE  PANAMA  CANAL 

a  plan  that  the  work  of  each  shovel  will  be  continuous , 
i.  e.,  that  as  soon  as  a  shovel  fills  one  car,  another  is  at 
hand  to  be  filled  and  the  steam  shovels  can  be  thus  oc- 
cupied twenty-four  hours  a  day.  As  we  go  in,  the  steam 
shovels  we  can  use  will  number  about  forty  and  will 
gradually  be  increased  until  we  reach  one  hundred ;  and 
as  the  work  progresses  towards  completion  and  the 
place  of  operation  sinks  lower  and  lower  and  becomes 
narrower  and  narrower  into  the  bottom,  the  one  hundred 
shovels  will  have  to  be  diminished  until  they  will  number 
but  thirty  or  forty. 

The  Culebra  cut  is  eight  miles  long,  and  if  a  sea- 
level  canal  were  constructed  the  depth  of  the  excavation 
would  be  one  hundred  and  eighty  feet  and  its  width  two 
hundred  feet  at  the  bottom  and  more  than  three  hun- 
dred feet  at  the  top. 

The  eight-hour  law  applies  on  the  Isthmus  because  it 
is  government  work.  Congress  has  provided  that  aliens 
may  be  worked  longer  than  eight  hours,  and  so  also  their 
foremen  and  their  superintendent.  The  question  of 
labor  is  a  very  difficult  one.  Three  of  the  West  Indian 
blacks  are  not  equal  to  one  of  our  day  laborers  in  effi- 
ciency and  amount  of  daily  work.  It  has  been  proposed 
to  try  Chinamen.  The  law  does  not  forbid  it.  The  diffi- 
culty in  working  large  gangs  of  Chinamen  is  that  the 
contractors  are  inclined  to  insist  on  such  regulations 
for  the  control  of  the  laborers  that  it  is  difficult  to  dis- 
tinguish the  method  of  supervising  them  from  involun- 
tary servitude.  We  are  hopeful,  however,  that  work- 
able contracts  can  be  made  which  secure  all  lawful  and 
proper  freedom  of  action  to  the  individual  Chinese  la- 
borers. We  have  been  quite  successful  with  about  five 
hundred  men  brought  from  the  northern  provinces  of 
Spain,  who  worked  in  Cuba  and  who  are  doing  good 


THE  PANAMA  CANAL  105 

work  now  on  the  Isthmus.  One  man  of  this  class  is 
worth  just  about  three  of  the  West  Indian  blacks.  I 
shall  not  further  discuss  this  subject  except  to  say  that 
the  question  of  the  necessary  labor  in  building  the  canal 
is  a  very  serious  one. 

Now  the  Panama  Isthmus,  if  you  have  not  looked  at 
your  geography,  will  surprise  you  by  running  east 
and  west  rather  than  north  and  south,  so  that  the 
canal,  instead  of  running  east  and  west,  runs  from 
northwest  to  southeast.  It  is  about  forty-two  miles 
from  shore  to  shore.  The  line  of  the  canal  runs  up  the 
valley  of  the  Chagres  River  about  twenty-six  miles  to 
Obispo  and  Gamboa,  where  it  leaves  the  valley  of  the 
Chagres  and  follows  the  valley  of  the  Obispo,  a  tribu- 
tary of  the  Chagres,  for  four  miles  to  Culebra  Hill, 
where  is  the  great  cut,  and  thence  down  on  the  other 
side  for  ten  miles  to  the  Pacific  Ocean.  The  Culebra 
Cut  is  three-quarters  of  the  way  across  the  Isthmus. 

The  Chagres  River  presents  the  great  problem.  It  is 
a  very  winding  stream,  and  a  sea-level  canal  must  fol- 
low its  valley.  In  the  dry  season — and  there  is  a  very 
dry  season  on  the  Isthmus  for  three  or  four  months — 
the  Chagres  at  Gamboa,  where  the  canal  line  and  the 
river  valley  unite,  discharges  about  three  hundred  and 
fifty  cubic  feet  per  second,  but  in  times  of  flood  it  has 
been  known  to  discharge  seventy-six  thousand  cubic  feet 
a  second.  The  rainfall  at  Culebra  is  about  ninety  inches 
a  year,  but  at  Bohio,  in  the  valley  of  the  Chagres,  it 
reaches  one  hundred  and  forty-two  cubic  inches  a  year. 
Provisions  must  be  made  to  prevent  such  a  flow  from 
overwhelming  the  canal  at  Gamboa  and  all  the  way 
down  for  twenty-six  miles  to  the  Atlantic  seashore. 
There  are,  between  Gamboa,  the  place  where  the  Chagres 
River  comes  into  the  prism  of  the  canal  as  projected 


106  THE  PANAMA  CANAL 

and  the  mouth  of  the  canal  on  the  north  side,  some 
seventeen  or  eighteen  streams  that  now  empty  into  the 
Chagres,  and  the  water  from  these  streams,  which,  in 
times  of  flood,  is  about  equal  to  what  the  Chagres  dis- 
charges at  Gamboa  in  times  of  flood,  has  also  to  be 
taken  care  of.  This  is  the  chief  reason  why  previous 
boards  of  engineers  have  recommended  that  a  sea-level 
canal  be  not  constructed.  They  have  said  not  that  it 
was  impracticable,  but  that  it  presented  such  difficulties 
in  the  matter  of  construction  in  time  and  cost  that  they 
did  not  recommend  it  as  feasible. 

In  the  summer  of  1905,  the  President  appointed  a 
board  of  consulting  engineers  to  consider  and  recom- 
mend the  proper  type  of  canal.  There  were  thirteen 
members  and  there  were  included  in  the  number  eminent 
English,  French,  German  and  Dutch  engineers  with 
experience  in  canal  construction,  as  well  as  leading 
American  engineers.  The  Board  divided  in  opinion. 
All  the  foreign  engineers  and  three  Americans  favored 
a  sea-level  canal,  while  five  of  the  American  engineers 
recommended  a  lock-canal.  The  Isthmian  Canal  Com- 
mission, to  whom  the  board  of  engineers  reported,  trans- 
mitted it  to  the  Secretary  of  War,  concurring  in  the 
recommendation  of  the  minority  in  favor  of  a  lock 
canal.  The  Secretary  of  War  also  favored  a  lock  canal 
and  the  President  transmitted  all  the  reports  to  Con- 
gress for  its  action,  with  a  strong  statement  of  the  ad- 
vantages of  a  lock  canal  and  the  disadvantages  of  a 
canal  at  the  sea  level  as  proposed. 

The  sea-level  canal,  as  projected  by  this  majority  of 
the  consulting  engineers,  begins  on  the  Atlantic  side, 
about  a  mile  to  the  north  of  Colon,  in  the  Bay  of 
Limon,  through  which  the  entrance  to  the  canal  must 
be  made.     Indeed,  both  types  of  canal,  in  order  to  pro- 


THE  PANAMA  CANAL  107 

tect  against  the  constant  northerly  waves  and  winds, 
provide  a  long  breakwater,  which  runs  from  this  point 
of  beginning  for  four  miles  to  the  shore  of  Limon  Bay, 
and  both  plans  contemplate  a  channel  dug  forty  feet 
in  the  one  case,  forty-two  in  the  other  and  five  hun- 
dred feet  wide  from  the  mouth  of  this  breakwater  and 
parallel  to  it  to  the  shore ;  then  the  line  of  the  sea-level 
canal  follows  in  a  general  way  the  Chagres  River  up  to 
a  point  where  the  Chagres  River  comes  down  from  the 
mountains  at  Gamboa,  twenty-six  miles  from  the  At- 
lantic shore.  At  Gamboa,  in  order  to  take  care  of  the 
Chagres  River  where  it  would  enter  directly  the  prism 
of  the  canal,  there  is  to  be  constructed  a  dam  on  rock 
one  hundred  and  thirty  feet  above  the  level  of  the 
Chagres  River,  so  that  the  level  of  the  water  held  by 
the  dam  will  be  one  hundred  and  seventy  feet  above 
the  water  in  the  projected  sea-level  canal.  This  Gam- 
boa dam  forms  a  lake  by  flooding  the  water  clear  back 
up  the  upper  valley  of  the  Chagres  some  ten  or  fifteen 
miles.  In  connection  with  the  dam,  there  is  to  be  a 
spillway,  which,  in  times  of  flood,  it  is  proposed  to 
use  to  let  out  fifteen  thousand  cubic  feet  of  water  a 
second  into  the  prism  of  the  canal.  The  water  is  to  be 
let  down  one  hundred  and  seventy  feet  on  steps,  in 
order  to  break  the  fall,  before  it  is  ultimately  let  into 
the  prism  of  the  canal.  On  the  other  bank  of  the 
Chagres,  and  below  Gamboa,  there  are  three  other  dams 
pro j  ected  in  the  sea-level  plan ;  one  dam  twenty-two 
hundred  feet  long,  made  of  earth,  and  seventy-five  feet 
high,  of  sufficient  height  to  back  the  water  over  the 
height  of  land  from  which  the  branch  stream  comes  and 
carry  it  down  into  another  valley.  Then  there  is  an- 
other dam  eight  hundred  feet  long  and  seventy  feet 
high,  and  another  dam  four  hundred  and  ninety  feet 


108  THE  PANAMA  CANAL 

long  and  twenty-five  feet  high;  so  that  you  will  see  in 
the  sea-level  canal  we  are  not  without  dams ;  and  among 
those  that  we  would  have  would  be  the  highest  dam  in 
the  world — the  Gamboa  Dam. 

The  width  of  the  projected  sea-level  canal  is  one 
hundred  and  fifty  feet  across  the  bottom  for  twenty-one 
miles  of  the  canal  between  shore  and  shore.  It  is  one 
hundred  and  fifty  feet  wide  for  about  twenty-one  miles 
and  two  hundred  feet  wide  for  about  twenty-one  miles. 

Where  the  bottom  is  two  hundred  feet  it  is  in  rock, 
and  there  they  make  the  width  about  two  hundred  and 
eight  feet  across  the  top.  The  bottom  width  in  earth  is 
only  one  hundred  and  fifty  feet,  but  the  surface  width, 
due  to  the  greater  slope  of  the  banks,  is  greater  than 
the  surface  width  of  the  canal  in  rock.  When  the 
Pacific  Ocean,  or,  rather,  the  shore-line  of  the  Bay 
of  Panama  is  reached,  the  canal  widens  into  a  channel 
three  hundred  feet  wide  that  runs  out  to  what  is  called 
the  forty-feet  contour  of  the  bay. 

The  current,  in  times  of  highest  flood  from  the  dis- 
charge of  the  fifteen  thousand  cubic  feet  a  second  from 
the  Chagres  River,  and  the  discharge  of  water  from  the 
fifteen  streams  that  are  to  be  allowed  to  empty  directly 
into  the  prism  of  the  canal,  would  be  at  Bohio,  halfway 
down,  about  two  miles  and  sixty-four  hundredths  an 
hour,  a  current  which,  in  the  Suez  Canal,  has  been  found 
to  be  one  in  which  large  steamers  steer  badly.  The  sea- 
level  canal  is  not  to  be  widened  at  curves  and  has 
no  wider  stretches  for  passing  places  or  stations.  The 
Suez  Canal  is  only  one  hundred  and  eight  feet  across  the 
bottom,  but  at  passing  places  it  is  one  hundred  and 
forty-seven  feet,  and  at  curves  it  is  one  hundred  and 
thirty-seven  feet,  so  that  for  practical  purposes  the 
Suez  Canal  is  of  very  little  less  width  than  the  pro- 


THE  PANAMA  CANAL  109 

posed  sea-level  canal  at  points  where  the  width  of  the 
canal  becomes  important.  In  the  Suez  Canal  steamers 
are  not  allowed  to  pass  except  by  having  one  steamer 
tie  up  to  the  bank  and  the  other  go  by  very  slowly. 
That  is  what  would  have  to  be  done  in  this  sea-level 
canal  if  it  were  constructed.  The  curvature  of  the  sea- 
level  canal,  from  Gamboa  Dam  to  Gatun,  within  three 
miles  of  the  shore,  a  distance  of  twenty  miles  or  more, 
would  be  four  and  one-half  times  what  the  curvature  is 
in  the  Suez  Canal,  and  the  current  is  just  about  as  great 
at  times  of  flood  as  it  is  in  the  Suez  Canal  at  certain 
stages  of  the  tide.  There  are  no  streams  that  enter  into 
the  Suez  Canal  at  all.  There  is  one  fresh-water  canal. 
The  Suez  Canal,  as  you  know,  is  through  a  desert  and 
there  is  no  rainfall.  The  consequence  is,  that  the  con- 
ditions surrounding  the  Suez  Canal  and  its  location  are 
very  different  from  those  which  would  surround  the 
sea-level  canal  as  here  projected.  A  rainfall  of  one 
hundred  and  forty-two  inches,  with  sixteen  streams  en- 
tering into  the  canal,  carried  right  into  the  same  prism 
of  the  canal,  would  be  very  certain  to  produce  cross- 
currents where  the  streams  enter,  in  addition  to  the 
direct  current  varying  from  two  miles  to  two  miles  and 
sixty-four  one-hundredths  an  hour  during  times  of 
flood.  A  vessel  as  large  as  the  largest  now  under  con- 
struction, which  is  seven  hundred  and  eighty-eight  feet 
long,  eighty-eight  feet  beam  and  thirty-eight  feet 
draught,  would  have  very  great  difficulty  in  getting 
through  a  canal  one  hundred  and  fifty  feet  wide  in  a 
current  from  two  to  two  and  a  half  miles  an  hour,  with 
a  curvature  of  four  and  a  half  times  that  in  the  Suez 
Canal,  and  I  think  that  those  considerations  were  prob- 
ably what  led  Congress,  the  House  and  the  Senate,  to 
prefer  the  lock  canal,  which  has  now  been  decided  upon 


110  THE  PANAMA  CANAL 

and    which    I    am,    with    your    permission,    about    to 
describe. 

The  lock  canal  is  not  a  canal  in  the  proper  sense.  It 
is  a  series  of  lakes.  It  begins  as  the  sea-level  canal 
began,  about  a  mile  away  from  Colon,  with  the  break- 
water four  miles  long,  carried  clear  to  the  shore  of 
Limon  Bay,  with  a  channel  five  hundred  feet  wide  by 
forty-two  feet  deep,  until  the  shore  is  reached ;  thence  a 
five-hundred-foot  channel  of  the  depth  of  forty-five  feet 
is  continued  to  Gatun,  four  miles  further.  At  Gatun 
there  is  to  be  a  dam  seven  thousand  and  seven  hundred 
feet  in  length,  one  hundred  and  thirty-five  feet  in  height, 
half  a  mile  thick  at  the  bottom,  three  hundred  and 
seventy-four  feet  thick  at  the  water  level,  which  is 
eighty-five  feet  above  sea  level.  The  dam  rises  fifty 
feet  above  the  water  level  to  its  crest,  which  is  one 
hundred  feet  across.  The  dam  is  to  be  constructed  of 
earth.  We  have  more  earth  from  excavation  than  we 
need.  It  is  hard  to  dispose  of  it;  therefore,  it  is  con- 
venient to  dispose  of  some  of  it  that  otherwise  we  might 
have  to  carry  out  to  sea  in  the  construction  of  this 
immense  dam.  The  dam  is  to  be  constructed  by  the 
method  known  as  sluicing,  that  is,  the  material  mixed 
with  water  is  to  be  pumped  in  and  the  water  drawn  off. 
This  method  secures  greater  solidity  of  material,  for 
when  the  water  is  drawn  off  no  crevices  are  left.  At 
the  end  of  this  dam,  and  in  a  hill  with  a  soft  but  solid 
rock  foundation,  there  is  to  be  constructed  a  flight  of 
locks.  These  locks  are  in  three  steps  for  the  purpose 
of  raising  the  vessels  that  come,  eighty-five  feet  from 
sea  level  to  the  level  of  the  water  behind  the  dam.  The 
locks  were  projected  by  the  minority  of  the  consult- 
ing board  about  nine  hundred  feet  long,  usable  length, 
forty  feet  over  the  miter  sills,  that  the  miter  gates  rest 


THE  PANAMA  CANAL  111 

on,  and  ninety-five  feet  in  width,  but  the  President  is 
inclined  to  enlarge  those  locks  to  make  them  one  thou- 
sand feet  long  and  one  hundred  feet  in  width  and  forty 
feet  in  depth,  in  order  to  meet  the  requirements  of 
vessels  one  thousand  feet  long,  which  may  be  constructed. 

These  locks,  as  I  say,  are  in  steps.  The  walls  of  the 
locks  are  to  be  made  of  reinforced  concrete.  The  out- 
side walls  are  thirty-six  feet  in  thickness.  The  locks  are 
to  be  in  duplicate.  The  middle  walls  between  the  locks 
are  forty  feet  in  thickness.  The  lock  structure  will  be 
upwards  of  thirty-six  hundred  feet  in  length  and  three 
hundred  and  thirty  feet  in  width.  The  locks  are  built 
into  a  hill  which  lies  just  to  the  south  of  the  dam,  so 
built  that  the  earth  covers  the  walls  of  the  locks  to  the 
top.  The  locks  are  to  have  double  gates  so  that  al- 
ways against  the  water  above  there  will  be  two  pro- 
tections. When  a  vessel  enters,  if  it  were  to  drive 
through  the  gates  it  would  have  to  overcome  the  weight 
of  four  gates  four  hundred  and  fifty  tons  each  of 
weight  and  a  cushion  of  water  about  eighty  feet  thick 
and  thirty  feet  high.  These  locks  as  a  feature  of  the 
plan  have  been  criticised  on  the  ground  of  the  danger 
of  accidents  in  their  operation.  I  shall  return  to  that 
again  and  point  out  what  the  danger  is  and  how  great 
it  is,  in  view  of  experience  that  has  been  had  at  the  Soo 
Canal.  I  might  say  that  the  lift  of  each  of  these  locks 
is  twenty-eight  and  two-thirds  feet.  The  lift  of  the 
lock  at  the  Soo  Canal  is  twenty-one  feet. 

The  effect  of  the  construction  of  the  dam  at  Gatun 
is  to  create  a  lake  that  from  here  around  to  this  point 
[indicating]  is  about  thirty  miles  long.  It  creates  a 
lake  in  which  the  navigation  for  the  purpose  of  the 
canal  is  twenty-three  miles  in  extent.  At  the  dam  the 
depth  of  the  water  is  seventy-five  feet.     As  we  proceed 


112  THE  PANAMA  CANAL 

into  the  narrower  portion,  the  depth  reduces  to  forty- 
five  feet  and  excavations  will  have  to  be  made  in  order 
that  that  depth  may  be  attained.  All  this  white  [indi- 
cating on  the  map]  that  you  see  means  a  depth  of  forty- 
five  feet  or  more,  so  that  from  this  point  around  by 
the  channel  for  fifteen  miles  it  is  really  lake  navigation, 
and  there  will  be  plenty  of  space  for  anchoring  or  any- 
thing else  that  a  vessel  would  choose  to  do  in  a  lake. 

The  great  advantage  of  the  lake,  in  addition  to  the 
wide  and  free  navigation  it  affords,  is  that  it  offers  a 
safe  and  easy  method  of  providing  for  the  influx  of  the 
water  from  the  Chagres  River  and  these  fifteen  or 
eighteen  streams  that  lie  between  the  Gamboa  Dam  in 
times  of  flood  and  at  other  times.  The  lake  is  so  exten- 
sive— it  is  one  hundred  and  eighteen  square  miles  in 
superficial  area — that  it  can  take  in  all  the  water  that  in 
floods  will  come  from  the  Chagres  and  its  tributaries 
and  not  feel  it  in  the  slightest.  In  the  middle  of  the 
Gatunda,  there  is  a  hill  in  which  a  sluiceway  is  pro- 
jected, through  which  the  flow  of  water  from  the  lake  to 
the  sea  can  be  regulated,  and  the  level  kept  at  eighty- 
five  feet. 

These  streams  are  taken  into  the  lake  on  the  shore 
of  the  lake  and  at  points  so  far  from  the  channel  for 
steamers  that  there  is  no  danger  of  a  deposit  of  silt 
or  the  mud  which  might  fill  up  the  channel  and  require 
constant  dredging  at  a  great  cost.  In  the  sea-level 
plan,  it  would  be  impossible  to  avoid  the  necessity  for 
persistent  dredging  and  the  great  expense  due  to  it. 

Here  [pointing  to  the  map]  you  observe  these  streams 
come  in  at  points  all  the  way  from  five  to  eight,  and,  in 
some  cases,  ten  miles  away  from  the  channel,  so  that 
the  heavy  material  in  the  water  that  is  brought  in  falls 
on  the  shore  and  does  not  reach  to  the  channel. 


THE  PANAMA  CANAL  113 

The  lock  canal  has  a  channel  five  hundred  feet  or 
more  in  width  for  two-thirds  of  the  whole  length  and 
forty-five  feet  deep.  Only  one-seventh  of  it  is  two 
hundred  feet  wide  and  that  four  and  seven-tenths  miles 
through  the  Culebra  Cut.  After  it  passes  through  the 
cut  at  Culebra,  four  and  seven-tenths  miles,  it  widens 
into  three  hundred  feet  until  we  reach  a  lock  at  Pedro 
Miguel,  of  thirty  feet  fall.  This  is  to  let  vessels  down 
into  another  lake  with  a  level  of  fifty-five  feet  above 
the  sea,  constructed  by  the  erection  of  three  dams  on 
the  Pacific  Ocean,  and  to  be  known  as  Sosa  Lake.  This 
lake  also  has  a  depth  of  forty-five  feet  and  offers 
lake  navigation  of  five  miles  from  Pedro  Miguel  to  the 
shore  of  Panama  Bay.  On  the  shore  at  the  mouth  of 
the  Rio  Grande  River  is  Sosa  Hill,  and  at  each  side 
of  it  are  the  necessary  dams.  In  Sosa  Hill  itself  dupli- 
cate flights  of  two  locks  are  to  be  constructed  by  which 
vessels  are  to  be  let  down  to  sea  level  into  a  channel 
three  hundred  feet  wide  and  forty  feet  deep,  running  out 
to  the  contour  line  of  forty-foot  depth  in  Panama  Bay. 

I  omitted  to  say  in  my  description  of  the  sea-level 
canal  that  there  is  to  be  a  tidal  lock  on  the  Pacific  side. 
The  tide  on  the  north  or  Atlantic  side  rises  and  falls 
but  two  feet.  The  extreme  tide  variation  on  the  other 
side  is  twenty-three  feet.  In  order  to  avoid  the  current 
that  would  of  course  be  produced  by  this  difference  in 
tidal  levels,  it  would  be  necessary  to  have  a  tidal  lock, 
having  a  total  lift  of  twenty-three  feet.  It  has  been 
supposed  that  that  tidal  lock  might  be  left  open  half  the 
time,  but  experience  with  the  tidal  lock  at  the  Kiel  Canal 
has  shown  that  the  channel  through  the  lock  has  to  be 
narrowed  to  such  a  point  that  when  the  lock  is  open  at 
both  ends,  the  current  is  increased  so  as  to  become  dan- 
gerous to  navigation.    It  is  necessary,  therefore,  to  keep 


114  THE  PANAMA  CANAL 

the  tidal  lock  at  Kiel  closed  all  the  time,  and  so  would 
it  be  with  a  tidal  lock  in  the  sea-level  canal  at  Panama. 

Returning  for  a  moment  to  the  lock  canal  and  Sosa 
Lake,  at  the  Pacific  terminus,  it  is  a  question  of  doubt 
whether  that  lake  will  be  constructed.  One  objection  is 
that  it  brings  the  locks,  with  all  their  machinery,  im- 
mediately down  to  the  shore  and  makes  them  an  easy 
mark  for  an  enemy's  guns.  That  is  not  true  of  the 
lock  plan  on  the  Atlantic  side,  because  the  Gatun  locks 
are  four  miles  away  from  the  shore,  and  no  vessel  could 
come  in  within  three  or  four  miles  of  shore  of  Limon 
Bay.  Again,  it  is  doubtful  whether  the  effect  of  a 
fresh  water  lake  immediately  in  the  neighborhood  of 
Panama,  which  is  so  near,  would  be  beneficial  to  the 
health  of  that  city.  It  has  been  proposed,  and  I  think 
Mr.  Stevens,  the  chief  engineer,  is  in  favor  of  the 
proposition,  to  make  a  sea-level  canal  from  the  Pacific 
shore  up  to  Miraflores  or  Pedro  Miguel,  where  good 
foundations  may  be  had,  and  there  construct  a  dam  and 
a  flight  of  locks  as  at  Gatun,  and  thus  have  the  series  of 
three  locks  on  one  side  at  one  place  and  the  three  locks 
on  the  other  at  one  place.  That,  I  think,  would  econo- 
mize the  management  of  the  locks  and  certainly  would 
enable  the  persons  in  charge  to  guard  more  carefully, 
with  less  trouble,  two  centers  of  possible  danger  and 
injury  rather  than  three. 

Now  I  should  like  to  go  back  for  a  moment  to  the 
Gatun  dam,  which  is  the  keystone,  if  I  may  use  that 
expression,  of  the  whole  lock  canal.  There  are  high  hills 
at  Gatun  on  each  side  of  the  Chagres  River  seven  thou- 
sand and  seven  hundred  feet  apart,  very  near  to  this 
shore,  as  you  will  see,  and  those  hills,  therefore,  make 
the  placing  of  the  dam  here  of  very  great  advantage, 
because  by  damming  these  you  flood  a  large  territory 


THE  PANAMA  CANAL  115 

and  make  a  great  lake.  I  ought  to  say  that  the  plan 
recommended  by  the  Isthmian  Canal  Commission  in  1899 
and  that  favored  by  previous  commissions  acting  under 
French  auspices,  contemplated  the  dam  at  Bohio  some 
thirteen  or  fourteen  miles  up  the  Chagres  River,  and 
a  sea-level  canal  up  to  that  point.  But  the  foundation 
at  Bohio  was  found  to  be  not  as  satisfactory  as  at 
Gatun,  and  another  difficulty  was  that  with  the  dam 
at  Bohio,  the  lake  formed  was  much  smaller,  the  lake 
navigation  was  less  extensive  and  did  not  make  as  satis- 
factory provision  for  taking  in  the  flood  waters  of 
the  Chagres  and  its  tributary  streams.  Most  of  the 
experts  supporting  the  sea-level  canal  project  admitted 
that  the  Gatun  dam  was  stable.  Mr.  Hunter  was  the 
engineer  of  the  Manchester  Ship  Canal  and  was  on  the 
French  Committee  Technique  which  reported  in  1898 
on  the  plan  and  reported  against  the  sea-level  canal,  but 
in  his  later  investigations  he  had  seen  a  new  light,  and 
when  he  came  to  vote  this  time  he  voted  in  favor  of  the 
sea-level.  Mr.  Burr  was  in  favor  of  the  sea-level.  He 
had  been  on  the  Isthmian  Canal  Commission  of  1899  and 
he  had  voted  then  in  favor  of  the  lock  canal  with  a 
height  of  eighty-five  feet,  but  he  also  changed  his  mind 
and  voted  in  favor  of  the  sea-level  canal,  and  those  two 
by  changing  carried  the  majority  of  the  consulting  en- 
gineers in  favor  of  the  sea-level  as  against  the  lock  canal. 
Mr.  Burr  attacked  the  stability  of  the  Gatun  dam. 
Mr.  Hunter  did  not  and  neither  did  Mr.  Parsons,  the 
other  American  engineer  favoring  the  sea-level  canal. 
Mr.  Burr's  attack  was  based  on  this  ground.  He  said 
that  the  foundation  of  the  dam  was  not  proper  to  make 
the  dam  of  a  stable  construction.  The  dam  is  to  be 
seven  thousand  and  seven  hundred  feet  in  length.  Un- 
der five  thousand  feet  of  this  length  there  is  a  founda- 


116  THE  PANAMA  CANAL 

tion  of  twenty  feet  below  the  surface  of  the  ground  of 
what  is  called  "  indurated  clay."  It  is  really  a  soft 
rock  like  soapstone.  It  is  a  rock  which,  when  exposed, 
does  not  yield  to  the  water.  There  has  been  at  Colon 
for  thirteen  or  fourteen  years  an  excavated  dry  dock 
of  this  material,  the  sides  of  which  now  are  just  as 
plumb  and  just  as  smooth  as  they  were  when  it  was 
constructed.  But  in  the  length  of  seven  thousand  and 
seven  hundred  feet,  there  are  two  depressions  in  this 
rock  foundation  that  we  have  described,  one  eighteen 
hundred  feet  and  the  other  nine  hundred  feet  in  length, 
which  were  probably  the  beds  of  old  streams  of  the 
Chagres.  In  these  depressions  are  clay  and  sand  mixed 
— an  impermeable  material — running  down  to  the  rock 
from  one  hundred  and  fifty  to  two  hundred  feet.  At 
the  lowest  part  of  the  depressions  two  hundred  feet  at 
one  point  and  two  hundred  and  five  feet  at  another  is 
found  a  material  of  coarse  gravel  and  sand,  which  is 
water  bearing,  so  that  when  a  pipe  is  sunk  down  into 
it  two  hundred  odd  feet  the  water  comes  up  and  has 
overflowed  the  pipe,  I  think  in  one  case  an  inch  and  a 
half  and  in  another  case  possibly  two  inches.  Now 
that  is  thought  by  Mr.  Burr  to  indicate  that  the  founda- 
tion for  the  dam  is  not  of  the  proper  material,  and  that 
it  will  be  unstable.  It  is  said  that  the  fact  that  under- 
neath that  is  water  flowing  is  an  indication  that  there 
is  some  connection  with  the  river  and  that  the  water 
of  the  river  must  necessarily  communicate  with  it.  It 
is  demonstrable  that  the  water  cannot  communicate  with 
the  river,  at  least  not  near  the  dam,  for  the  river  is  at 
sea  level  as  far  as  Bohio,  seven  miles  above,  and  this 
water  comes  out  of  the  pipes  some  eight  or  ten  feet  above 
the  level  of  the  river.  The  water,  therefore,  probably 
comes  from  pockets  in  the  neighboring  hills. 


THE  PANAMA  CANAL  117 

To  begin  with,  the  construction  of  earth  dams  has 
been  a  science  in  which  marked  improvement  has  been 
made  during  the  last  ten  or  fifteen  years.  The  question 
of  filtration  of  water  has  been  studied  with  great  care. 
Mr.  Stearns,  of  Boston,  who  planned  the  Gatun  dam,  is, 
I  suppose,  the  greatest  living  authority  on  that  sub- 
ject. All  earth  dams  which  have  been  properly  con- 
structed have  proven  generally  to  be  rather  better  than 
masonry  dams — certainly  better  than  masonry  dams 
constructed  with  earth  and  a  core  of  masonry,  because 
the  union  of  the  masonry  with  the  core  is  not  generally 
as  successful  as  it  should  be. 

There  are  three  ways  of  destroying  a  dam.  The 
water  may  flow  over  the  top  of  the  dam  and  carry  it 
away  by  working  down  into  it  as  at  Johnstown ;  then 
it  may  percolate  through  the  material  of  the  dam  in 
such  a  way  as  to  carry  away  the  material  of  the  dam, 
the  face  of  the  dam  falling  over;  and  then  it  may, 
although  there  are  very  few  instances  of  it,  percolate 
under  the  dam  with  so  much  force  as  to  carry  away  the 
material  under  the  dam  and  up  in  front  of  the  dam  so 
that  the  dam  falls  into  the  cavern  thus  made,  but  it 
requires  great  pressure  to  do  that. 

Now  for  the  benefit  of  those  who  do  not  know  what 
I  did  not  know  until  I  looked  into  the  subject,  the 
science  of  hydrostatics  shows  that  the  pressure  against 
a  dam  of  this  character  is  in  proportion  to  the  height 
of  the  water,  without  regard  to  the  volume  of  water, 
and  whether  you  have  a  lake  of  thirty  miles  extent  or  a 
lake  that  only  extends  back  a  half  a  mile  from  the 
dam,  the  pressure  is  exactly  the  same,  if  the  height  of 
the  water  against  the  dam  is  the  same.  Now  there  is 
no  danger  at  all— everybody  admits  that — of  breaking 
over  the  top  of  this  dam,  which,  according  to  the  plan 


118  THE  PANAMA  CANAL 

of  construction,  is  fifty  feet  above  the  level  of  the  water. 
There  is  no  danger  of  breaking  through  the  dam,  which 
is  a  half-mile  thick  at  the  bottom  and  three  hundred  and 
seventy-four  feet  thick  at  the  level  of  the  water,  be- 
cause it  is  practically  possible  to  construct  a  dam  with 
clay  by  sluicing  so  to  make  it  absolutely  impermeable. 
Then  the  question  comes:  Is  there  any  danger  from 
the  percolation  underneath  the  dam?  As  I  have  said, 
there  is  an  impermeable  blanket  there  one  hundred  and 
fifty  to  one  hundred  and  sixty  feet  thick  between  the 
bottom  of  the  lake  and  any  water-bearing  material  in 
the  ground  underneath.  How,  then,  can  water  from  the 
lake  penetrate  under  the  bottom  of  the  dam  and  not 
only  percolate  there  but  percolate  with  such  strength 
as  to  carry  away  the  material  through  which  it  perco- 
lates for  a  distance  of  half  a  mile?  You  have  all  seen 
a  spring  that  comes  up  at  the  bottom  of  the  mountains 
— when  it  first  breaks  out,  a  little  sand  comes  with  it, 
but  afterwards  there  is  no  material.  The  water  is 
clear  and  pure.  So  here  even  if  water  could  escape,  it 
would  not  have  force  enough  to  carry  material  upward 
under  the  toe  of  the  dam.  Mr.  Stearns,  by  experi- 
ment, shows  that  even  if  the  foundation  in  these  de- 
pressions were  only  average  coarse  sand,  through  which 
water  would  flow,  instead  of  impermeable  clay  and  sand 
as  it  is,  there  would  not  flow  from  the  surface  of  these 
depressions  more  than  ten  cubic  feet  a  second  across 
the  whole  twenty-seven  hundred  feet.  That  is  a  negli- 
gible quantity  with  no  possible  destructive  force. 

I  should  say  something  with  reference  to  the  tonnage 
of  the  lock  canal.  Filling  these  lock  cavities  takes  a 
good  deal  of  water,  and  you  have  to  have  enough  water 
in  the  lake  so  that  you  will  not  draw  off  in  the  dry 
^season  enough  to  reduce  the  depth  of  the  lake  water 


THE  PANAMA  CANAL  119 

below  what  you  need  for  navigation  of  vessels.  After 
thirty-six  or  thirty-seven  million  tons  of  shipping  have 
been  passed  through  in  a  year — that  is,  at  that  rate 
per  year — the  water  would  be  drawn  so  low  by  lockage 
during  the  dry  season  that  there  would  have  to  be  a 
reservoir  constructed  at  Alajuela  to  keep  water  in  re- 
serve which  could  be  used  to  maintain  the  lake  at  proper 
level.  Such  a  reservoir  can  be  constructed  for  two  mil- 
lions of  dollars,  and  then  the  total  tonnage  which  could 
pass  the  canal  in  a  year  would  be  about  eighty  million 
tons.  When  you  consider  that  the  Suez  Canal  began 
with  about  five  million  tons  of  shipping  and  has  in- 
creased to  about  fourteen  million  tons  a  year,  you  will 
see,  if  you  calculate  it,  that  at  the  same  rate  of  in- 
crease the  tonnage  would  be  about  fifty  million  tons  for 
this  canal  in  the  year  2000.  I  think  we  can  readily 
postpone  anxiety,  therefore,  as  to  its  capacity  for  con- 
sideration of  our  great-grandchildren. 

The  weight  of  this  dam  is  sixty-three  times  the  pres- 
sure against  its  face.  The  dam  is  larger  than  any  dam 
in  the  world  and  larger  in  the  proportion  of  resistance 
to  the  water  than  any  dam  in  the  world,  and  I  should 
like  for  a  moment  to  invite  your  attention  to  a  map, 
showing  the  various  earth  dams  now  constructed  and 
in  use.  This  is  the  highest  earth  dam  in  the  world  [in- 
dicating]. It  is  in  California  on  the  east  side  of  San 
Francisco  Bay,  and  is  called  the  San  Leandro  dam. 
The  water  here  is  ninety-five  feet  high.  This  dam  hasn't 
such  a  height  of  earth  as  the  Gatun  dam,  but  the  water 
level  is  higher  and  the  water  level  among  engineers  is 
regarded  as  the  height  of  the  dam.  You  will  observe 
the  difference  in  the  extent  of  the  material  used  to  hold 
back  the  water  of  Lake  Gatun,  as  it  is  called,  and  San 
Leandro.     Gatun  dam  is  much  larger.     There  is  some- 


120  THE  PANAMA  CANAL 

thing  quite  interesting  about  the  San  Leandro  dam. 
That  was  about  five  miles  east  of  San  Francisco  Bay, 
where  they  had  an  earthquake.  It  is,  as  I  have  said,  the 
highest  earth  dam  in  the  world,  but  it  was  not  injured 
in  the  slightest  and  lost  no  water.  The  Pelarcitos  dam 
in  California  has  a  water  level  of  eighty-five  feet,  just 
the  height  of  this  Gatun  dam.  It  is  situated  on  the 
peninsula  on  which  San  Francisco  is  located.  The 
earthquake  slid  one  great  layer  of  earth  and  rock  over 
another  and  cut  off  the  water  pipes  leading  from  this 
dam  to  San  Francisco.  The  movement  followed  the  line 
of  an  old  geological  fault.  The  fault  came  through 
this  end  of  the  Pelarcitos  dam  [indicating]  ;  and  yet, 
although  the  fault  went  right  through  the  dam,  there 
was  not  a  drop  of  water  lost.  It  shook  the  dam  but 
the  cracks  were  closed  up  by  the  weight  of  the  material 
of  the  dam.  I  ought  to  add  that  the  fear  of  danger 
from  earthquakes  to  our  canal  works  founded  on  the 
San  Francisco  earthquake,  is  shown  by  the  effects  of 
that  earthquake  not  to  be  justified.  Not  only  did  this 
Pelarcitos  dam — an  all-earth  dam — withstand  the  di- 
rect movements  of  the  earthquake,  but  there  was  a  dam 
just  half  a  mile  away  from  the  line  of  fault,  called 
the  Crystal  Springs  dam,  made  of  concrete  masonry.  It 
was  something  like  one  hundred  and  twenty-five  feet 
high.  The  whole  dam  was  pushed  and  thrust  by  the 
earthquake  in  such  a  way  that  when  a  man  went  to 
examine  it  it  was  perfectly  possible  to  see  how  it  had 
been  moved.  Yet  it  stands  there  to-day  and  holds  the 
water  of  San  Francisco.  In  other  words,  the  earth- 
quake has  shown  that  what  an  earthquake  does  is  to 
shake  down  the  buildings  and  the  walls  and  the  struc- 
tures that  are  not  properly  constructed,  but  that  when 
they  are  constructed  as  they  should  be  generally,  they 


THE  PANAMA  CANAL  121 

are  immune  from  destruction.  On  the  Isthmus  of 
Panama  they  occasionally  have  earthquakes,  but  there  is 
to  be  seen  in  an  old  convent  on  the  Isthmus  a  very  flat 
arch  that  has  stood  for  three  hundred  years.  Colonel 
Hecker,  who  is  present,  told  me  that  it  was  the  wonder 
of  engineers,  and  if  there  had  been  an  earthquake  of 
great  force  on  the  Isthmus  of  Panama,  it  is  impossible 
to  see  how  it  could  have  stood,  and  yet  it  is  there  as  liv- 
ing evidence  of  the  fact  that  if  we  are  going  to  count  on 
earthquakes  destroying  the  Panama  Canal,  we  are 
merely  allowing  dreams  to  affect  us,  which  ought  not  to 
influence  practical  men. 

Now,  as  to  the  danger  from  the  locks.  In  the  Soo 
Canal  and  approaching  channels  three  times  more  ton- 
nage streams  through  the  forty  miles  of  the  passage 
and  the  locks  in  nine  months  than  passes  through  the 
Suez  Canal  in  twelve  months.  Yet,  in  fifty  years  of 
operation  at  the  Soo  Canal,  they  have  never  had  a  dan- 
gerous or  a  destructive  accident.  The  experts  favor- 
ing a  sea-level  canal  were  greatly  troubled  lest  the  gates 
of  the  top  locks  might  be  destroyed  by  a  vessel  which 
failed  to  stop  when  it  should  and  the  water  would  flow 
out  from  the  top.  If  the  water  began  thus  to  flow,  they 
insisted  that  there  would  be  no  way  to  stop  it ;  that  the 
water  would  flow  out  of  the  lake  destroying  everything 
before  it  and  would  drain  the  lake,  which  it  would  take 
a  year  to  fill  again.  Mr.  Hunter,  of  the  Manchester 
Canal,  was  sure  there  was  some  danger  of  that  sort  and 
he  detailed  several  accidents  of  the  kind  occurring  at 
the  Manchester  Canal.  Mr.  Noble,  the  dean  of  Ameri- 
can engineers,  who  was  for  years  in  charge  of  the  Soo 
Canal,  and  Mr.  Ripley,  who  has  been  for  twelve  years 
in  charge  of  that  canal,  testified  that  such  accidents  are 
most  unlikely,  especially  with  the  double  gates  which 


122  THE  PANAMA  CANAL 

they  do  not  have  either  at  the  Soo  or  at  the  Manchester 
Canal.  They  say  the  accidents  on  the  Manchester 
Canal  occurred  for  lack  of  proper  precautions,  that 
snubbing  the  vessels  in  by  lines  so  that  they  are  not 
under  the  control  of  the  engines  but  under  the  control 
of  skilled  employees  on  shore  is  the  proper  method  and 
will  insure  slow  and  safe  movement. 

To  recur  again  to  the  comparison  between  the  two 
types  of  canal,  I  ought  first  to  say  that  while  with  small 
steamers  the  passage  through  the  sea-level  canal  would 
be  shorter  than  through  the  lock  canal,  it  is  not  so  with 
larger  vessels  after  the  business  increases  to  say  twenty 
vessels  a  day.  Then  the  time  of  passage  will  be  about 
the  same  in  the  two  types  of  canal,  or  about  ten  hours. 
If  the  vessels  increase  in  number  and  size,  the  passage 
through  the  lock  canal  will  be  less  than  in  the  sea  level. 
This  is  due  to  the  necessity  for  slow  movement  in  the 
narrow  channel  of  the  sea-level  canal  and  for  tying 
up  one  vessel  when  two  pass  and  to  the  speed  of  navi- 
gation possible  in  the  lakes  of  the  lock  canal  which 
more  than  compensates  for  the  delay  of  two  hours  and 
twenty  minutes  in  going  up  the  locks  and  the  same  time 
going  down. 

The  time  of  construction  for  the  lock  canal  I  hope 
will  not  exceed  seven  years.  Generously  our  engineers 
have  added  a  year  and  made  it  eight.  The  time  of  the 
sea-level  canal  would  be  from  fourteen  to  sixteen  years 
and  the  chief  engineer  thinks  twenty.  The  cost  of  the 
canal  will  probably  be  about  one  hundred  and  fifty 
millions.  The  cost  of  the  sea-level  canal  would  probably 
be  about  three  hundred  millions.  Thus  the  lock  canal 
is  a  better  canal  than  the  sea-level  canal — of  the  size 
and  type  proposed — and  can  be  constructed  at  half  the 
cost  and  in  half  the  time. 


A  REPUBLICAN  CONGRESS  AND  ADMINISTRA- 
TION, AND   THEIR  WORK  FROM 
1904  TO  1906 

BOISE    CITY,    IDAHO,    NOVEMBEE     3,   1906 

Ladies  and  Gentlemen:  It  is  a  great  privilege  to 
visit  your  beautiful  City  of  Boise.  It  is  a  great  pleas- 
ure to  meet  this  intelligent  audience.  It  is  a  great 
honor  to  meet  you.  I  especially  appreciate  the  coming 
of  the  fifty  veterans  who  have  marched  from  the  Sol- 
diers' Home,  showing  that  they  still  retain  a  deep  inter- 
est in  the  history  of  that  country  which  they  did  so 
much  to  save.  But  I  never  meet  an  audience  like  this, 
with  your  interested,  upturned  faces,  without  the  deep 
regret  that  I  can  not  occupy  your  attention  in  the  way 
in  which  you  evidently  expect,  because  I  fear  that  the 
result  of  my  remarks  before  I  get  through  will  be 
rather  soporific  in  its  tendency.  But  I  must  discuss  the 
issues  of  the  campaign  in  my  own  way,  and  as  some  of 
the  issues  involve  a  discussion  of  rather  abstruse  points 
of  law,  I  must  ask  your  attention  and  your  patience 
while  I  go  on  to  discharge  my  duty  and  ask  you  as  an 
audience  to  discharge  yours. 

It  is  now  two  years  ago,  or  nearly  so,  since  the  elec- 
torate of  the  United  States  decided,  by  an  overwhelming 
vote,  that  Theodore  Roosevelt  should  be  President,  and 
that  there  should  be  a  Republican  House  and  a  Republi- 
can Senate.  During  those  two  years  the  Republican 
House  and  Republican  Senate  have  had  one  long  session, 
and  the  question  now  in  determining  as  to  the  return  of 
successors  to  those  two  Houses  is,  whether  they  have  done 

123 


124  A  REPUBLICAN  CONGRESS 

anything  or  failed  to  do  anything  which  should  disen- 
title them  to  the  confidence  which  you  so  overwhelm- 
ingly expressed  in  November,  1904,  and  that  requires 
an  examination  of  what  they  have  done. 

One  of  the  great  features,  one  of  the  great  historical 
facts,  of  the  last  five  years  has  been  the  enormous  in- 
crease in  the  wealth  of  this  country  and  in  its  prosper- 
ity; and  in  that  increase  in  wealth  have  developed  cer- 
tain evils,  to  remedy  which  has  been  the  study  of  many 
men  and  many  statesmen.  Now,  one  of  the  easiest 
habits  to  fall  into  in  discussing  a  situation,  especially 
if  you  are  in  the  opposition  party,  is  to  denounce  every- 
thing, to  hunt  adjectives  of  a  very  intense  quality  and 
use  them  in  describing  conditions. 

One  of  the  texts  which  have  furnished  the  most  op- 
portunity to  the  Democratic  orators  is  the  subject  of 
trusts.  Trusts  have  developed  into  an  evil,  but  I  think 
it  would  help  us,  and  might  help  the  Democratic  ora- 
tors, to  whom  I  refer,  if  they  would  define  exactly  what 
they  mean  by  trusts,  and  explain  what  the  evils  are  of 
which  they  are  guilty,  with  a  view  to  possibly  reaching 
a  conclusion  as  to  how  they  ought  to  be  remedied.  But 
before  we  come  to  the  question  of  trusts,  or  rather  de- 
fining them,  we  may  say  that  they  are  enormous  aggre- 
gations of  wealth  used  as  capital,  but  so  used  as  to  de- 
prive the  public  of  the  benefit  of  the  use  of  that  capital 
to  which  they  are  entitled.  We  must  all  recognize  that 
wealth  used  as  capital  is  the  basis  of  modern  civiliza- 
tion, that  the  right  of  property  is  the  most  valuable 
right  in  building  up  our  society,  next  to  the  right  of 
personal  liberty.  The  right  of  property  develops  in 
men,  and  developed  in  men  in  the  Dark  Ages,  those  vir- 
tues of  self-restraint  and  providence  upon  which  we 
build  all  the  other  virtues.     The  use  of  wealth,  there- 


AND  ADMINISTRATION  125 

fore,  as  capital,  that  is,  to  reproduce  itself,  is  a  virtue. 
That  is  what  we  have  it  for.  The  corporation — the 
artificial  entity  known  to  the  law  as  the  corporation — is 
the  most  important  instrument  in  modern  times  in  per- 
fecting and  helping  on  the  use  of  wealth  as  capital  to 
reproduce  wealth,  because  it  offers  the  opportunity  to 
amass  the  savings  of  many  into  one  fund — one  great 
fund — with  which  railroads  and  other  great  commercial 
enterprises  can  be  carried  on ;  and  the  incident  of  the 
transfer  of  shares  of  stock  is  what  enables  so  many  mil- 
lions of  people  to  have  an  interest  in  these  immense 
corporations  which  they  have  helped  to  build  up  by  con- 
tributing their  modest  savings.  Any  man  who  would 
discourage  corporate  enterprises,  who  would  discour- 
age the  saving  of  wealth  in  that  way  to  be  used  in  in- 
creasing the  prosperity  of  this  country,  would  be  doing 
a  greater  harm  to  the  poor  man,  to  the  wage-earner 
and  to  the  small  dealer  than  he  would  to  the  manager 
and  the  president  of  the  great  corporations.  We  must 
keep  that  in  mind.  Any  man  who  would  interfere  with 
the  prosperity  of  our  country,  considering  what  it  is, 
would  be  an  arch-conspirator  against  the  people. 

Let  us  consider  what  an  enormous  development  this 
country  has  had  in  the  past  five  years.  The  manufac- 
turing plants  alone  have  increased  in  value  from  nine 
billion  dollars  in  1900  to  thirteen  billions,  or  forty  per 
cent,  in  five  years.  The  products  of  those  plants  have 
increased  from  eleven  and  a  half  billions  to  fifteen  bil- 
lions, or  thirty  per  cent.,  showing  that  the  capitalist 
in  1905  was  not  receiving  as  much  for  his  money  as  he 
was  in  1900.  On  the  other  hand,  the  wage-earners  em- 
ployed in  those  factories  in  1905  increased  sixteen  per 
cent,  over  the  wage-earners  of  1900,  but  in  the  wages 
paid  there  was  an  increase  of  thirty  per  cent.,  showing 


126  A  REPUBLICAN  CONGRESS 

that  the  wage-earners  in  1905  were  receiving  fifteen  per 
cent,  more  per  man  on  the  average  than  they  were  in 
1900.  With  that  kind  of  prosperity  before  us,  we  must 
be  sure  that  the  men  who  attempt  to  remedy  the  evils 
that  have  grown  out  of  the  organization  of  capital 
must  be  conscious  of  the  necessity  for  preserving  the 
use  of  capital,  which  is  indispensable  to  our  well-being. 
It  will  not  do  to  destroy  our  whole  structure  just  to 
suppress  the  evils  which  have  arisen  in  its  organization. 

What  are  the  evils  of  trusts?  For  the  sake  of  sim- 
plicity, we  may  divide  the  trusts  into  two  kinds.  One 
is  formed  by  a  contract,  or  loose  arrangement,  bind- 
ing together  a  number  of  independent  firms  or  corpora- 
tions. They  agree  to  divide  the  territory  for  their 
customers,  or  they  agree  in  some  other  way  that  they 
will  maintain  the  prices  of  the  goods  which  they  sell  at 
a  particular  height.  By  so  doing  they  eliminate  com- 
petition, and  while  by  the  use  of  the  corporation  and 
the  use  of  capital  they  reduce  the  cost  of  production, 
they  still  maintain  the  prices,  and  thus  appropriate  to 
themselves  all  the  benefit  of  the  reduction  in  the  cost  of 
production  and  deny  it  to  the  public. 

The  second  development  is  that  all  these  firms  or 
corporations  are  finally  combined  in  one  great  corpora- 
tion that  may  embrace  eighty  or  ninety  per  cent,  of  the 
producing  capacity  of  the  country  for  that  particular 
commodity,  and  because  they  absorb  so  much  of  the 
producing  capacity,  they  are  able  to  deal  with  middle- 
men and  retail  dealers  in  this  wise.  They  say  to  them : 
"  Here,  you  must  sign  a  contract  with  us  by  which  you 
shall  not  sell  below  a  certain  price,  and  by  which  you 
shall  deal  with  us  exclusively,  because  if  you  don't  com- 
ply with  such  a  contract,  if  you  don't  sign  such  a  con- 
tract, when  the  demand  for  our  goods  is  active,  and 


AND  ADMINISTRATION  127 

when  you  want  more  than  you  can  get  from  these  inde- 
pendent firms  wTho  are  furnishing  them,  we  will  decline 
to  sell  you  these  goods  except  at  a  much  higher  price." 
In  that  way  they  coerce  the  retail  dealers  and  the  mid- 
dlemen into  dealing  with  them  exclusively,  and  in  that 
way  they  drive  out  competition.  This  subject  had  con- 
sideration some  twenty  years  ago  or  more.  In  the  second 
Congress  of  Mr.  Cleveland's  first  administration — a 
Democratic  Congress — they  took  a  great  deal  of  evi- 
dence on  the  subject.  They  said  trusts  were  increas- 
ing, and  that  they  ought  in  some  way  to  be  restrained, 
but  the  committee  thought  and  thought  and  finally  said 
that  they  gave  up  the  problem  and  turned  it  over  to  the 
next  Congress,  which  was  then  known  to  be  Republican. 
That  was  in  1889.  In  1890  the  Republican  Congress 
came  in,  and  passed  the  Sherman  anti-trust  act.  You 
must  bear  in  mind  that  Congress  can  not  deal  in  trade 
inside  of  a  state,  but  in  interstate  trade,  that  is,  trade 
across  state  lines,  and  that  limitation  sometimes  inter- 
fered very  much  with  the  efficiency  of  Congressional 
legislation  on  this  subject ;  but  Congress  passed  this  act, 
which  in  its  first  section  denounced  as  a  crime  and  pro- 
vided for  restraint  by  injunction,  any  combination  in 
restraint  of  interstate  trade.  The  second  section  de- 
nounced and  provided  for  restraint  by  injunction  a 
monopoly  of  interstate  trade.  There  were  other  sec- 
tions, but  substantially  that  was  the  act.  It  was  not  as 
full  in  detail  as  it  might  have  been.  It  needed  a  great 
deal  of  generous  construction  to  make  it  operative  and 
so  it  was  brought  into  the  courts.  The  first  case 
brought  up  was  the  sugar  trust  case.  There  the  gov- 
ernment attempted  to  enjoin  the  absorption  of  a  lot 
of  sugar-refining  companies  so  that  the  plants  would  in- 
clude about  ninety  per  cent,  of  the  producing  capacity 


128  A  REPUBLICAN  CONGRESS 

of  the  country,  but  the  court  said  that  that  was  not  in- 
terstate trade ;  that  those  were  only  factories  in  differ- 
ent states,  and  the  mere  fact  that  the  refined  sugar 
which  was  to  be  made  by  those  factories  might  sub- 
sequently go  into  interstate  trade,  and  thus  the  union 
would  enable  them  to  control  that  business,  did  not  make 
the  products  of  the  factories  interstate  trade,  and  so 
the  bill  was  dismissed.  Mr.  Olney,  the  attorney-general 
of  Mr.  Cleveland,  was  so  discouraged  by  that  that  he 
thought  it  was  necessary  to  relegate  the  whole  matter  to 
state  courts  and  to  state  legislation.  But  Mr.  Har- 
mon, who  succeeded  him,  under  Mr.  Cleveland,  went  into 
court  and  obtained  two  decisions  against  railroads 
which  were  interstate.  Then  there  came  a  decision  in 
the  Addyston  Pipe  case.  In  that  case  there  were  eight 
or  nine  different  corporations  manufacturing  cast-iron 
pipe  in  different  states,  and  they  divided  up  the  terri- 
tory. They  not  only  divided  up  the  territory  in  which 
they  should  sell  their  pipe,  but  they  also  had  an  agree- 
ment by  which,  when  bids  were  invited  by  any  town  for 
the  sale  of  cast-iron  water  pipe,  they  had  a  little  meet- 
ing— a  little  auction  in  advance  of  the  bidding — and 
they  decided  among  themselves,  by  bidding  among  them- 
selves, which  one  should  have  the  contract,  and  then  hav- 
ing decided  which  one  should  have  the  contract,  they 
arranged  the  matter  so  that  the  competition  should  ap- 
pear to  be  very  active.  The  stenographer  of  the  head 
of  that  concern  turned  state's  evidence  and  gave  the 
whole  matter  away  to  the  courts.  The  result  was  that 
they  were  enjoined  and  the  Supreme  Court  sustained  it, 
on  the  ground  that  the  trade  in  cast-iron  pipe  was 
across  state  lines,  was  interstate  trade,  and  that  there 
was  a  combination  in  restraint  of  interstate  trade. 

The  most  important  decision,  however,  was  one  ob- 


AND  ADMINISTRATION  129 

tained  in  Mr.  Roosevelt's  first  administration,  called  the 
Northern  Securities  Case.  There  a  corporation  was  or- 
ganized in  New  Jersey  to  hold  the  stock  of  the  Great 
Northern  and  the  Northern  Pacific  Roads,  with  a  view 
to  a  common  management.  They  were  competing  rail- 
roads in  interstate  trade,  and  the  question  was  whether 
that  New  Jersey  corporation  was  a  combination  in  re- 
straint'of  interstate  trade.  The  Supreme  Court  held 
that  it  was,  by  a  divided  court,  and  that  prevented 
what  might  well  have  gone  on,  had  the  decision  been 
otherwise,  fehe  union  of  all  the  railroads  in  this  coun- 
try under  one  head.  It  did  not  make  Mr.  Roosevelt 
popular  in  Wall  Street.  The  number  of  trust  suits 
brought  in  Mr.  Harrison's  time  was  six.  The  number 
of  trust  suits  brought  in  Mr.  Cleveland's  time  was 
seven;  the  number  of  trust  suits  brought  in  President 
McKinley's  time,  during  the  Spanish  War,  was  but 
three.  The  number  of  trust  suits,  that  is,  suits  under 
the  anti-trust  law,  original  proceedings,  under  Mr. 
Roosevelt,  has  been  sixteen.  The  results  are  that  the 
Northern  Securities  Trust  was  dissolved,  the  paper 
trust  has  been  dissolved,  the  cast-iron  pipe  trust  has 
been  dissolved,  and  there  are  others  now  in  the  course  of 
litigation.  In  pursuing  this  statute  it  became  neces- 
sary for  Congress  to  pass  a  number  of  auxiliary 
statutes.  One  was  the  creation  of  the  Bureau  of  Cor- 
porations under  Mr.  Garfield.  He  has  investigated  a 
great  number  of  the  corporations  and  a  great  number 
of  the  trusts,  and  has  found,  to  use  the  expression  of 
Attorney-General  Moody,  that  the  greatest  instrumen- 
tality in  the  maintenance  of  trusts  is  discriminating 
rates  upon  railroads.  When  a  trust  has  enormous 
freight  to  give  to  a  railroad,  it  says  to  the  railroad: 
"  If  you  do  not  give  me  discriminating  rates,  secret  re- 


130  A  REPUBLICAN  CONGRESS 

bates,  against  my  competitor,  I  will  give  my  freight  to 
another  railroad."  The  railroad  yields,  sometimes  will- 
ingly, and  sometimes  unwillingly,  but  it  generally  yields. 
That  brought  to  Mr.  Roosevelt's  attention  the  neces- 
sity for  a  change  in  the  interstate  commerce  law,  a 
change  which  should  put  into  the  Interstate  Commerce 
Commission  greater  power  than  it  ever  had  before.  But 
it  was  really  only  an  advisory  board.  It  could  tell  the 
railroad  company  what  was  an  unreasonable  rate  but  it 
could  not  tell  the  railroad  company  what  was  a  reason- 
able rate.  It  might  make  an  order  against  the  rail- 
road company,  but  the  railroad  company  was  not 
obliged  to  obey  it.  So  the  whole  matter  had  to  be 
brought  into  court  and  the  whole  case  gone  over  again. 
The  rate  bill  contained  two  provisions,  insisted  on  by 
Mr.  Roosevelt,  namely,  that  the  Commission  might  fix  a 
reasonable  maximum  rate,  and  also  that  its  orders 
should  go  into  effect  and  be  obeyed  by  the  railroad  com- 
pany. That  rate  bill  passed  the  House  and  the  Senate, 
and  was  signed  in  June,  and  by  its  terms  was  to  go  into 
effect  the  first  of  September.  What  was  the  result? 
Between  June  and  September  there  were  more  notices 
filed  by  the  railroad  companies  to  reduce  rates  than  had 
been  filed  in  the  twenty  years  previous  under  the  inter- 
state commerce  law.  On  the  29th  of  August,  two  days 
before  the  act  went  into  effect,  there  were  filed  in  the 
Interstate  Commerce  Commission  office  five  thousand 
notices  to  reduce  rates  by  the  railroad  companies — ■ 
voluntary  notices.  The  Standard  Oil  Company  was  in- 
dicted in  I  don't  know  how  many  suits  for  rebates  re- 
ported by  Mr.  Garfield,  and  before  those  suits  came  to 
trial  the  Standard  Oil  Company  had  rearranged  their 
rates.  In  New  England,  for  instance,  they  had  so  ar- 
ranged their  rates  that  no  independent  producer  of  oil 


AND  ADMINISTRATION  131 

could  go  into  that  country  at  all.  They  changed  that 
in  view  of  their  indictments,  and  to-day  the  independent 
oil  producers  are  going  into  the  New  England  terri- 
tory, and  the  price  of  oil  has  fallen. 

The  tobacco  trust  has  been  indicted  as  a  trust  under 
the  anti-trust  law.  It  had  proceeded  on  the  theory 
which  I  suggested  some  time  ago.  It  went  to  its  mid- 
dle men  and  to  the  retail  dealers  and  said :  "  Here,  you 
must  deal  with  us  exclusively.  You  must  charge  our 
prices  or  we  will  not  let  you  have  any  licorice,"  licorice 
being  the  basis  of  most  manufactured  tobacco.  When 
under  this  indictment  they  were  charged  with  violating 
the  anti-trust  law,  they  announced  by  advertisement 
that  they  had  withdrawn  their  discriminating  rates  that 
had  been  insisted  upon  in  the  contracts,  and  would  sell 
to  the  independent  companies  at  the  same  price  at  which 
they  would  sell  to  the  trust  companies. 

The  New  York  Central  Railroad  has  been  indicted 
and  convicted  of  granting  rebates  to  the  sugar  trust, 
in  order  that  that  might  compete  with  the  beet-sugar 
factories  in  Michigan. 

Now,  I  mention  these  various  incidents  happening 
within  the  last  two  years,  or  eighteen  months,  merely  to 
show  you  that  by  the  activity  of  Theodore  Roosevelt,  by 
his  determination  to  have  these  laws  enforced,  by  his  de- 
termination to  ask  Congress  that  if  these  laws  can  not 
be  enforced  to  have  laws  which  can  be  enforced,  the 
fear  of  the  Lord  and  the  fear  of  the  law  has  been  put 
into  the  hearts  of  the  managers  of  railroad  companies 
and  the  managers  of  trusts. 

Under  Mr.  Harrison's  administration  there  were 
seventeen  original  proceedings  brought  under  the  in- 
terstate commerce  law;  under  Mr.  Cleveland  thirty- 
two;   under   Mr.    McKinley   thirteen;    and   under    Mr. 


132  A  REPUBLICAN  CONGRESS 

Roosevelt  about  seventy-five.  The  truth  is  that  it  has 
been  demonstrated  in  the  last  year  that  it  is  possible, 
through  the  instrumentality  of  the  courts  and  through 
statutes  properly  directed,  to  suppress  these  evils,  if 
time  is  taken  and  energy  and  vigor  put  into  the  pros- 
ecution. 

But  our  Democratic  friends  say  we  must  destroy  the 
trusts,  we  must  not  regulate  them — we  must  not  simply 
suppress  the  evils  that  occur  in  their  operation.  That 
sounds  well  rhetorically,  but  when  you  come  to  examine 
it,  you  will  find  that  it  is  a  very  serious  question.  Why 
should  those  great  business  enterprises  be  destroyed? 
Why  should  you  take  out  of  the  general  prosperity  of 
the  country  that  which  has  furnished  the  pay-rolls  and 
an  enormous  wage  fund  which  has  brought  about  the 
prosperity  that  we  are  now  enjoying?  What  we  ought 
to  do  is  to  regulate  them  in  order  to  suppress  the 
evils  of  their  operation,  but  to  allow  them  to  go  on  and 
contribute  to  the  general  welfare  of  this  country. 

But  the  Democrats  say  the  way  to  destroy  the  trusts 
is  to  revise  the  tariff,  with  a  view  to  taking  out  of  the 
tariff  protection  those  things  which  the  trusts  manufac- 
ture. That  sounds  attractive,  but  when  you  examine 
the  schedules  that  go  to  make  up  this  protective  tariff 
of  ours,  you  will  find  that  it  is  absolutely  impossible  to 
segregate  any  one  commodity  from  this  schedule,  made 
up  with  the  greatest  care,  the  items  in  which  are  inter- 
dependent on  each  other.  If  you  take  out  one  item 
you  will  find  that  you  break  down  the  whole  system, 
and  you  will  find  that  you  will  not  only  injure  the 
trusts,  but  you  will  injure  a  great  many  innocent  manu- 
facturers who  are  not  a  trust  and  who  are  doing  a 
legitimate  business.  In  other  words,  it  is  a  mathe- 
matical proposition  that  can  not  be  worked  out  in  that 


AND  ADMINISTRATION  133 

way.  It  is  true  that  if  you  were  to  abolish  the  pro- 
tective tariff  system  altogether,  and  have  free  trade, 
it  would  be  less  easy  for  anybody  to  absorb  an  entire 
business  in  a  trust,  because  he  would  then  have  to  ab- 
sorb the  producing  capacity  of  foreign  countries.  In 
other  words,  the  protective  tariff  obstructs  foreign  com- 
petition and  in  so  far  as  it  does  that  it  enables  trusts 
the  more  easily  to  form.  But  then  the  question  which 
you  have  to  answer  is  this:  Do  you  desire  to  destroy 
your  protective  tariff  system  entirely  merely  to  destroy 
the  trusts,  or  is  it  not  better  to  destroy  these  evils  of 
trusts  by  direct  legislation  and  by  compelling  them  to 
obey  the  law,  and  still  continue  the  protective  tariff  sys- 
tem that  such  a  great  majority  of  this  country  have 
determined  shall  be  the  basis  of  our  commercial  struc- 
ture? We  know  what  a  change  of  the  tariff  means. 
We  knew  it  in  Mr.  Cleveland's  time,  when  the  Wilson- 
Gorman  Bill  passed.  We  know  the  disaster  which  fol- 
lowed, and  which  necessarily  follows  with  a  change  of 
the  rates  of  duty  upon  the  articles  that  enter  into  our 
consumption.  The  tariff  is  something  upon  which  busi- 
ness depends.  If  you  change  it  you  are  certain  to  dis- 
turb the  calculations  of  business  men  and  to  bring  about 
financial  disaster.  Therefore,  it  seems  to  me  that  the 
method  pursued  by  Mr.  Roosevelt  is  much  more  logical, 
much  safer  and  much  less  dangerous. 

Reference  was  made  by  the  Chairman  to  the  meat 
inspection  law.  That  was  a  law  against  which  at  the 
time  a  good  deal  of  criticism  was  directed.  The  in- 
vestigations which  were  made — the  reason  for  recom- 
mending the  passage  of  the  law — revealed  a  condition 
in  respect  to  the  taking  care  of  our  meat  in  the  Chicago 
market  that  certainly  was  most  revolting,  but  by  the 
passage  of  the  law,  by  the  securing  of  the  most  thor- 


184  A  REPUBLICAN  CONGRESS 

ough  inspection  by  the  inspectors  of  Uncle  Sam,  the 
whole  business  has  now  been  put  upon  a  sound  basis,  so 
that  when  in  Ohio  or  in  Washington  we  get  beef,  either 
in  the  can  or  in  the  carcass,  which  comes  across  state 
lines  and  bears  the  imprimatur  of  Uncle  Sam's  inspect- 
ors, we  know  it  is  edible  and  is  certified  to  by  men  who 
are  capable  of  knowing.  And  now  what  they  are  try- 
ing to  do  is  to  put  the  business  on  a  perfectly  sound 
basis,  and  though  for  a  time  it  may  have  injured  that 
trade,  it  has  given  to  all  those  interested  in  stock- 
raising  a  business  now  that  they  can  be  certain  will  be 
permanent. 

So  too  the  pure  food  law.  That  was  passed  at  the 
instance  and  by  the  pressure  of  your  Senator  Heyburn. 
That  provides  for  keeping  out  adulterants  from  medi- 
cines and  from  other  things  used  as  beverages  and 
foods.  They  too  now  bear  the  mark  of  the  inspector  of 
the  United  States,  and  therefore  carry  on  their  face  a 
certificate  of  their  healthfulness.  So  too  the  denatured 
alcohol  bill.  That  was  a  bill  providing  that  alcohol, 
which  was  to  be  used  in  the  arts,  to  be  used  for  lighting 
and  heating,  and  alcohol  can  be  used  most  cheaply  for 
that  purpose,  should  not  pay  the  enormous  tax  that 
alcohol  has  to  pay  when  it  goes  down  men's  throats. 
In  order  to  prevent  its  not  paying  a  tax  and  then  going 
down  men's  throats,  they  have  to  mix  something  with  it 
that  no  man  can  drink. 

These  four  acts  are  most  important  in  promoting  the 
welfare  of  the  people,  and  they  are  especially  significant 
in  this  that  they  were  all  opposed  most  bitterly  in  their 
passage  by  the  most  powerful  private  interests  of  this 
country — the  rate  bill  by  all  the  railroads,  the  meat  in- 
spection bill  by  the  packers  of  Chicago,  Omaha  and 
Kansas  City,  the  denatured  alcohol  bill  by  the  Standard 


AND  ADMINISTRATION  135 

Oil  Company,  and  the  pure  food  law  by  a  great  many 
quacks ;  and  in  spite  of  that  opposition,  in  spite  of  the 
bitterness  with  which  the  laws  were  attacked  by  all  of 
them,  they  went  through  both  the  House  and  the 
Senate,  and  were  signed  by  the  President  in  one 
session. 

Then  there  was  the  act  fixing  the  type  of  the  Panama 
Canal ;  the  statehood  act  which  provided  that  Oklahoma 
and  Indian  Territory  should  come  in  as  a  state,  and 
that  New  Mexico  and  Arizona  should  either  come  in  as 
one  state,  or  wait  until  they  were  large  enough  to  come 
in  as  two  states;  the  consular  act  which  put  the  con- 
sular system  on  a  proper  basis,  on  a  merit  system,  and 
took  it  out  of  politics. 

But  as  to  the  four  acts  that  I  first  mentioned,  I 
wish  to  emphasize  the  fact  that  they  were  bitterly  op- 
posed by  private  interests,  by  what  Mr.  Bryan  calls  the 
predatory  wealth  of  the  country.  I  wish  to  do  that 
because  I  wish  to  call  your  attention  to  the  fact  that 
this  Congress  was  the  greatest  Congress  since  the  war 
because  of  the  importance  of  the  legislation  which  it 
passed.  And  yet  Mr.  Bryan  and  other  Democratic 
statesmen  have  the  audacity  to  ask  the  people  of  this 
country,  after  praising  Mr.  Roosevelt's  policies,  to  send 
back  a  Democratic  House  to  uphold  his  hands,  and  a 
Democratic  Senate  to  uphold  his  hands,  because  a  Re- 
publican Senate  and  a  Republican  House  can  not  be 
trusted.  And  yet  the  record  is  as  I  have  stated,  that 
these  great  acts,  in  the  face  of  the  opposition  of  preda- 
tory wealth,  if  you  choose  to  call  it  such,  went  through 
both  the  Senate  and  the  House.  They  went  through 
the  Senate,  which  it  has  been  charged  is  the  home  of 
special  interests.  The  rate  bill  which  was  to  die  in  that 
body  came  out  of  it  a  better  act,  a  more  drastic  act  and 


136  A  REPUBLICAN  CONGRESS 

a  more  comprehensive  act — a  more  efficient  act  than 
it  was  when  it  passed  the  House. 

Now  Mr.  Bryan  says  to  send  back  to  the  President, 
apparently  as  a  Christmas  present,  a  Democratic 
House.  What  does  he  mean  by  that?  What  is  a 
Democrat  to-day?  Is  he  the  follower  of  William  Ran- 
dolph Hearst  of  New  York?  Mr.  William  Randolph 
Hearst  says  he  is  a  protectionist.  Is  he  a  follower  of 
Alton  B.  Parker,  the  candidate  whom  the  Democrats 
voted  for  at  the  last  election?  Mr.  William  Randolph 
Hearst  says  that  Mr.  Parker  is  a  political  cockroach. 
Is  it  Mr.  Bryan?  Mr.  Bryan  is  in  favor  of  govern- 
ment ownership  of  railroads.  He  wishes  us  to  issue 
fifteen  billion  dollars  worth  of  bonds  to  buy  all  the  rail- 
roads and  run  them  by  the  government.  Think  of  the 
immense  power  which  anybody  in  the  Presidency  would 
wield  with  all  the  railroad  men  of  this  country  at  his 
beck  and  call.  But  is  a  Democrat  in  favor  of  that? 
If  he  is,  then  it  means  the  denunciation  of  Senator 
Bailey  of  Texas,  and  John  Sharp  Williams,  the  leader 
of  the  Democratic  House,  who  say  that  they  will  have 
none  of  government  ownership.  Then  there  is  another 
gentleman  in  Massachusetts  who  has  come  forward. 
He  has  wiped  out  the  old  Democrats,  and  he  bears  the 
significant  name  of  John  Buttin  Moran.  There  is  an- 
other man  in  California  on  the  Democratic  ticket  who 
is  going  about  California  denouncing  William  Ran- 
dolph Hearst,  who  is  running  on  the  Democratic  ticket 
in  New  York.  When  Bryan  says,  "  Send  back  a  Demo- 
cratic House,"  just  tell  me  what  the  quality  of  the  mem- 
bership of  that  House  under  this  chaotic  state  in  the 
Democratic  Party  is  to  be.  It  is  a  subject  of  great  re- 
gret that  the  Democratic  Party  has  fallen  into  this 
condition.     It  ought  to  be  to  every  lover  of  this  coun- 


AND  ADMINISTRATION  137 

try,  because  we  are  a  popular  government  that  must 
depend  for  our  safety  and  the  carrying  on  of  the  gov- 
ernment on  the  maintenance  of  two  great  parties  hav- 
ing solidarity,  having  a  definite  purpose,  and  each 
having  the  patriotic  purpose  to  conserve  in  the  govern- 
ment that  which  is  best — both  parties  having  a  sense  of 
responsibility,  so  that  in  a  Presidential  contest  when  we 
may  differ  as  to  economic  policies,  the  members  of  each 
party  may  be  confident  that  if  the  other  party  comes 
into  power  the  government  will  still  be  conducted  with 
patriotism  and  with  a  view  to  the  benefit  of  the  whole 
people.  But  when  you  find  a  party  that  has  permitted 
itself  to  be  carried  to  extremes,  without  any  sense  of  re- 
sponsibility on  the  part  of  the  would-be  leaders,  I  am 
sorry  to  say  that  it  does  not  come  up  to  the  standard 
of  the  great  historic  Democratic  Party  that  we  knew, 
with  its  conservative  element  to  keep  it  straight  and  to 
keep  it  out  of  the  quagmire  of  demagoguism,  and  we 
have  to  depend,  I  am  sorry  to  say,  upon  the  Republican 
Party  alone. 

Two  years  ago  Theodore  Roosevelt  was  a  candidate 
for  the  Presidency.  What  I  am  about  to  say  is  apro- 
pos of  Mr.  Bryan's,  admission  now  that  the  policies  of 
Mr.  Roosevelt  are  such  that  they  ought  to  be  upheld 
by  somebody.  Of  course  we  differ  as  to  who  ought  to 
uphold  them,  but  he  thinks  they  ought  to  be  upheld  by 
somebody.  Two  years  ago  Mr.  Roosevelt  was  a  candi- 
date, and  the  song  that  was  sung  in  one  note  by  the 
Democratic  orators  from  the  Atlantic  to  the  Pacific 
Ocean  was  the  unfitness  of  Theodore  Roosevelt  to  act  as 
President  of  the  United  States.  They  said  that  he  was 
a  swashbuckler ;  that  he  was  going  about  with  his  sword 
ready  to  cut  somebody's  head  off;  that  he  was  looking 
for  a  fight ;  that  he  was  dragging  his  coat-tails  on  the 


138  A  REPUBLICAN  CONGRESS 

floor  in  order  that  somebody  might  step  on  them;  that 
he  had  a  chip  on  his  shoulder,  looking  around  in  order 
that  he  might  show  the  great  power  of  this  country,  and 
what  he  could  do  if  he  were  President,  and  therefore 
that  he  was  not  to  be  trusted  in  conducting  the  foreign 
affairs  of  this  country.  I  do  not  exaggerate.  I  have 
heard  those  statements  and  read  them  in  the  Democratic 
papers  time  and  time  again.  They  said  he  was  a 
usurper,  a  violator  of  the  Constitution;  that  he  would 
carry  this  country  to  perdition  if  you  elected  him  to  the 
Presidency  and  gave  him  free  scope.  What  has  hap- 
pened in  those  two  years?  We  haven't  quite  got  to 
the  perdition  that  they  predicted,  though  President 
Roosevelt  is  maintaining  the  army  and  navy  so  that 
we  are  not  pusillanimous ;  so  that  we  are  able  to  look 
other  nations  in  the  face  and  not  take  from  them  insult 
of  any  kind ;  yet,  on  the  other  hand,  he  has  pursued 
such  a  policy  as,  with  the  prestige  which  the  nation  has 
and  with  the  prestige  which  he  has  acquired  as  the  head 
of  this  government  before  the  nations  of  the  world,  to 
put  an  end  to  one  of  the  greatest  of  modern  wars,  the 
bloody  war  between  Japan  and  Russia  by  the  signing 
of  peace  at  Portsmouth.  He  was  able,  not  less  than  six 
months  ago,  to  bring  Guatemala  and  San  Salvador,  two 
republics  of  South  America  that  were  engaged  in  a  most 
bloody  contest — to  bring  their  representatives  on  the 
deck  of  an  American  warship,  and  there  have  them  sign 
a  protocol  of  peace.  He  was  able,  by  the  mere  force  of 
his  character,  by  his  prestige  as  President,  as  the  peace- 
loving  President,  to  bring  about  a  truce,  by  a  letter 
which  he  sent  to  the  Cubans,  and  to  send  back  peaceably 
to  their  farms  the  men  who  were  in  arms.  He  sent  Sec- 
retary Root  to  South  America  to  convince  the  republics 
of  that  continent  that  we  are  not  land-grabbers ;  that 


AND  ADMINISTRATION  139 

we  are  not  seeking  to  exploit  them  for  our  benefit ;  that 
we  are  merely  trying  to  secure  fraternal  relations  with 
them  and  merely  saying  to  them,  "  We  shall  stand  by 
you  to  see  that  you  do  not  suffer  in  your  independence 
from  the  possible  aggression  of  European  powers."  In 
Santo  Domingo  in  the  West  Indies  he  found  a  dissolu- 
tion of  the  bonds  of  society;  they  had  had  an  election 
and  then  a  revolution,  and  then  an  election  and  then  a 
revolution,  until  they  had  worn  everything  out ;  and 
they  said,  "  Can  not  you  come  in  and  help  us  ?  "  The 
President  concluded  a  treaty,  subject  to  confirmation 
by  the  Senate,  by  which  we  became  the  receiver  of  that 
island  in  a  sense  and  collected  its  customs ;  but  the  Sen- 
ate, or  rather  the  Democratic  part  of  the  Senate  which 
prevented  the  Republicans  from  having  a  full  two- 
thirds  vote  necessary  to  the  confirmation,  was  afraid 
that  four  or  five  of  their  members  might  vote  for  it,  so 
they  caucused  to  prevent  the  sanction  of  the  treaty,  and 
it  is  therefore  still  hung  up  in  the  Senate.  Meantime, 
the  President,  at  the  instance  of  the  President  of  the 
Santo  Domingo  Republic,  has  sent  to  that  island  per- 
haps a  dozen  American  collectors  of  customs,  under  an 
arrangement  by  which  they  pay  over  55  per  cent,  to 
run  the  government,  and  deposit  the  remaining  45  per 
cent,  in  a  New  York  bank  to  meet  their  obligations  to 
European  countries,  which  were  very  heavy — heavier 
indeed  than  they  ought  to  have  been.  The  45  per  cent, 
has  heaped  up  a  million  and  a  half  dollars  gold  in  a 
New  York  bank  where  it  has  induced  the  bankers  of 
New  York  to  arrange  for  a  refunding  of  the  debt,  and 
soon  it  is  hoped  that  with  the  passage  of  the  treaty 
that  country  will  be  put  upon  its  legs  again.  Mean- 
time they  have  had  another  revolution,  and  through  the 
intervention  of  our  navy  and  our  collectors  of  customs 


140  A  REPUBLICAN  CONGRESS 

that  revolution  too  has  come  to  an  end.  The  result  is 
that  this  swashbuckler,  this  gentleman  that  was  going 
to  carry  us  to  perdition,  instead  of  being  what  was 
prophesied  by  our  Democratic  prophets  has  turned  out 
to  be  the  most  successful  peacemaker  that  ever  sat  in 
the  Presidential  chair. 

Now  one  word  as  to  our  colonial  policy.  We  got  into 
the  Philippines  against  our  will.  That  is,  Dewey  won  a 
victory  there  and  after  he  had  won  that  victory  we 
could  not  get  out  because  we  had  a  dilemma  before  us  of 
three  horns.  The  first  one  was,  Should  we  turn  the 
islands  back  to  Spain?  When  we  had  invoked  the  aid 
of  the  Filipinos  to  assist  us  in  turning  the  Spaniards 
out,  it  would  not  have  been  fair  for  us  to  turn  the 
Filipinos  back  to  the  tender  mercies  of  Spain,  with  whom 
we  had  fought  with  the  Filipinos  on  our  side.  The 
next  horn  on  the  dilemma  was,  Should  we  turn  these 
islands  over  to  the  Filipinos?  While  we  were  there  the 
Filipinos  had  a  government  under  Aguinaldo  of  five  or 
six  months, — perhaps  a  little  longer, — and  there  never 
was  in  the  history  of  those  islands,  in  the  palmiest  days 
of  Spanish  tyranny,  such  corruption,  such  tyranny, 
such  a  want  altogether  of  a  decent  government,  as  there 
was  under  Aguinaldo,  demonstrating  to  those  who  were 
there  that  it  was  absolutely  impossible  to  turn  the 
islands  over  to  that  government,  or  to  those  people  at 
that  time.  The  other  horn  of  the  dilemma  was  that 
we  should  take  the  islands  ourselves;  that  we  should  do 
for  the  Filipinos  as  we  would  if  they  were  our  children, 
exercising  a  sacred  trust  for  them ;  that  we  should  treat 
the  islands  as  for  them  alone,  and  should  educate  them 
and  gradually  train  them  up  by  practice  in  self-govern- 
ment until  possibly  at  the  end  of  that  time  they  could 
stand  alone,  and  that  is  the  theory  that  we  are  attempt- 


AND  ADMINISTRATION  141 

ing  to  carry  out.  We  have  instituted  a  system  of  edu- 
cation there,  by  which  to-day  there  are  in  the  public 
schools  a  half  million  of  Filipino  children,  reading,  writ- 
ing and  reciting  in  English,  and  to-day  in  the  islands, 
as  a  result  of  that  education,  the  English-speaking 
people  outnumber  those  who  use  Spanish.  Mr.  Bryan 
says  that  this  is  an  outrage — not  the  education,  he  ap- 
proves the  education — but  that  it  is  an  outrage  that  we 
should  hold  these  islands  at  all.  Well,  of  course,  that 
depends  upon  the  question  whether  or  not  they  are  fitted 
for  self-government.  While  I  was  in  the  islands  there 
were  some  intelligent  Filipinos  who  came  to  me  and 
wanted  to  establish  a  party,  by  peaceable  means,  called 
the  party  of  independence,  and  they  asked  me  to  give 
them  permission  to  do  so.  I  said,  "  You  can  establish 
it,  if  you  want  it.  I  can  not  approve  it ;  it  is  not  neces- 
sary that  I  should,  and  I  do  not  think  it  is  wise  now,  and 
I  would  advise  you  to  delay."  They  came  to  me  with 
a  written  argument  on  the  subject  of  the  fitness  of  the 
Filipinos  for  self-government.  They  said  that  they 
were  convinced  that  the  Filipinos  were  fit  for  self-gov- 
ernment, because  they  had  counted  up  the  number  of 
offices  in  the  provinces,  the  municipalities  and  the  cen- 
tral government,  and  they  had  also  counted  up  the  num- 
ber of  educated  Filipinos  able  to  fill  those  offices,  and 
they  found  that  the  number  of  persons  to  fill  offices 
was  at  least  double  that  of  the  offices.  Therefore,  they 
said  they  could  have  a  shift,  and  when  the  country  got 
tired  of  the  first  shift  they  could  put  in  a  second  shift, 
and  so  they  were  fitted  for  self-government.  This  same 
committee  came  before  the  Congressional  delegation  that 
went  out  there  last  year,  and  they  explained  why  they 
were  fitted  for  self-government  in  this  wise.  They  said, 
"  There  are  seven  per  cent,  of  us  who  speak  Spanish 


142  A  REPUBLICAN  CONGRESS 

and  who  are  educated,  and  we  are  fit  for  self-govern- 
ment; we  are  a  governing  class.  In  addition  to  the 
governing  class  there  are  ninety-three  per  cent,  that  are 
totally  ignorant.  They  are  like  children.  They  are  a 
serving  class,  an  obedient  class,  and  in  that  way  with  us 
as  a  governing  class  and  with  them  as  a  serving  class, 
we  will  be  happy ;"  and  one  of  them  suggested  that  they 
might  bring  in  some  Chinamen  as  an  animal  class  who 
might  do  the  work.  Now  that  reveals  the  conception 
that  the  educated  Filipino  has  of  popular  government. 
His  idea  is  not  to  educate  the  lower  class  and  educate 
them  so  that  they  will  have  a  healthy  public  opinion, 
without  which  you  can  not  have  a  popular  government 
at  all.  Their  idea  is  to  keep  that  class  as  a  serving 
class.  If  the  Democrats  came  into  power  and  let  the 
islands  go,  they  would  have  to  take  them  back  again  in 
course  of  time.  They  would  be  doing  just  exactly  what 
we  are  doing — struggling  patiently  to  educate  these 
people  on  the  way  to  self-government.  They  are  a  fine 
people  in  many  ways.  They  are  a  Christian  people. 
They  are  the  only  Christians  in  the  Orient,  and  that  we 
owe  to  the  Spanish  Catholic  friars.  They  are  the  only 
Malays  that  are  Christians,  and  being  Christians  they 
look  toward  Europe  and  America  for  their  ideals.  The 
greatest  encouragement  that  anybody  interested  in  that 
race  can  have  is  the  eagerness  with  which  the  ignorant 
tao — that  means  a  common  man — is  anxious  to  have  his 
children  go  to  the  schools  to  learn  English.  That  in- 
dicates that  they  do  want  something  better  and  some- 
thing higher.  The  difficulty  we  have  in  dealing  with 
them  is  from  the  continual  statements  by  the  Democrats 
on  this  side — especially  by  Mr.  Bryan — that  we  are  go- 
ing to  leave  the  islands  just  as  soon  as  the  Democrats  get 
in.     What  effect  does  this  have  upon  us?     It  deprives 


AND  ADMINISTRATION  143 

us  of  the  earnest  support  of  the  conservative  people  of 
the  islands  who  will  be  glad  to  have  us  stay,  because  if 
in  two  years  there  is  to  be  a  change  and  the  islands  are 
to  be  left  derelict  on  the  ocean,  and  this  serving  class 
is  to  be  in  control,  then  those  who  favor  the  Americans 
during  the  time  of  the  American  government  will  not  be 
popular  with  this  class  which  is  to  govern,  and  therefore 
it  keeps  them  all  in  a  state  of  unrest  and  uncertainty. 
The  next  subject  to  which  I  wish  to  call  your  atten- 
tion is  that  which  has  been  made  an  issue  in  some  dis- 
tricts, the  attitude  of  the  President  and  Congress  to- 
wards the  laboring  men  of  this  country  and  the  labor 
unions.  In  the  first  place  no  one  recognizes  more  fully 
than  the  President  the  absolute  necessity  that  there  is 
for  the  organization  of  labor.  What  could  a  single 
laboring  man  do  in  the  necessary  controversies  that 
arise  between  labor  and  capital  with  respect  to  the 
adjustment  of  wages  and  the  division  of  the  product  of 
a  union  of  capital  and  labor  against  his  wealthy  em- 
ployers, especially  when  that  employer  is  a  great  corpo- 
ration? It  may  be  that  in  the  end  wages  of  labor  are 
determined  by  the  relation  of  supply  of  labor  to  the 
demand  for  it,  but  certainly  in  the  long  periods  of 
transition,  between  good  times  and  bad  times,  and  bad 
times  and  good  times,  readjustment  of  wages  on  a  fair 
basis,  considering  the  times,  is  very  much  affected  by 
the  power  that  the  laboring  men  may  gather  for  them- 
selves by  united  effort  to  increase  their  wages  on  a  rising 
market  and  to  prevent  the  too  sudden  decrease  of  their 
wages  on  a  falling  market.  There  is  a  great  deal  of 
human  nature  in  man,  and  employers  when  they  come  to 
economize  their  expenditures  in  more  stringent  times  are 
apt  to  look  to  their  pay-roll,  which  constitutes  their 
chief  expenditure,  as  the  place  where  they  can  most 


144  A  REPUBLICAN  CONGRESS 

easily  effect  a  reduction.  On  the  other  hand,  when  busi- 
ness is  improving  and  profits  are  increasing  they  are 
loath  to  share  these  profits  with  the  men  who  do  the  work 
and  without  whose  labor  no  profit  could  be  had. 

Hence  I  say  again  that  the  organization  of  labor  into 
labor  unions  is  absolutely  essential  to  the  welfare  of  the 
laboring  man  in  the  protection  of  his  legitimate  inter- 
ests ;  and  Theodore  Roosevelt  is  the  last  man  who  would 
lay  any  obstacle  in  the  way  of  the  efficiency  of  these  or- 
ganizations to  accomplish  their  legitimate  purpose.  He 
is  himself  an  honorary  member  of  the  Brotherhood  of 
Locomotive  Firemen,  and  he  has  taken  pains  at  all  times 
and  in  every  public  utterance  of  his  where  it  was  at  all 
relevant,  and  in  his  recommendations  to  Congress,  to 
manifest  his  interest  in  the  welfare  of  the  laboring  men 
of  this  country  and  his  earnest  desire  to  see  that  they 
do  not  suffer  from  the  aggressions  of  capital  and  that 
the  law  makes  every  provision  for  the  defense  of  their 
interests  and  the  betterment  of  their  welfare. 

Having  heard  from  the  complaints  of  the  laboring 
men  that  the  eight-hour  law  was  not  efficiently  adminis- 
tered as  to  contractors  in  the  war  department  and  in 
the  navy  department  and  in  other  departments  of  the 
government,  he  instituted  an  investigation  and  issued 
most  stringent  orders  which  have  now  put  that  law 
into  thorough  operation.  Having  found  that  the  rules 
with  reference  to  the  recovery  of  damages  from  rail- 
roads for  injuries  to  their  employees,  suffered  through 
the  negligence  of  the  railroad  companies  or  their  fellow- 
servants,  were  not  as  uniform  and  not  as  equitable  as 
they  ought  to  be,  he  recommended  the  passage  of  an  em- 
ployers' liability  act  for  interstate  commerce  railroads, 
which  passed  at  the  last  session  of  Congress.  Having 
found  that  in  a  lower  court  there  was  some  doubt  about 


AND  ADMINISTRATION  145 

the  proper  construction  of  the  law  with  reference  to 
the  use  of  appliances  on  railroad  cars  which  should  pre- 
vent injuries  to  brakemen  and  other  employees  concerned 
about  cars,  and  that  a  case  had  been  lost  by  an  em- 
ployee thus  injured,  in  one  of  the  Federal  courts  of  Cali- 
fornia, and  that  the  employee  was  unable  for  want  of 
means  to  take  an  appeal,  he  directed  his  Attorney-Gen- 
eral to  take  up  the  case — though  a  private  one — as  a 
government  case  in  order  to  test  the  validity  of  the  de- 
cision of  the  court  below  against  the  workingman.  And 
this  appeal  at  the  instance  of  the  government  resulted 
in  a  complete  reversal  of  the  decision  of  the  court  below, 
a  construction  of  the  statute  favorable  to  workingmen, 
and  a  judgment  for  the  employee. 

Complaint  was  made  to  him  by  the  great  labor  or- 
ganizations, the  Brotherhood  of  Locomotive  Engineers, 
the  Brotherhood  of  Locomotive  Firemen,  and  the 
Brotherhood  of  Railway  Conductors,  that  the  issuing 
of  injunctions  by  the  lower  Federal  courts  had  at  times 
been  abused.  They  pointed  out  to  the  President  that 
there  were  instances  in  which  legal  strikes  had  been 
carried  on  without  any  violation  of  the  rights  of  the 
employers,  and  that  injunctions  had  sometimes  issued 
on  the  petition  of  the  employers,  and  at  the  instance  of 
their  attorneys,  on  misstatements  of  the  facts,  against 
a  striking  workingman  without  any  notice  or  oppor- 
tunity to  demonstrate  the  lawfulness  of  their  proceed- 
ings, and  that  in  such  cases  it  had  not  infrequently 
happened  that  although  the  strikers  were  pursuing 
legal  methods,  and  although  the  strike  was  in  every  way 
within  the  law,  nevertheless  they  were  discouraged  and 
gave  up  the  controversy. 

The  President  conferred  with  the  heads  of  these  or- 
ganizations,  with  the   Attorney-General,  .  and   after   a 


146  A  REPUBLICAN  CONGRESS 

time  agreed  with  them  that  the  best  way  of  avoiding 
difficulty  was  to  pass  a  statute  requiring  that  notice 
should  be  issued  in  the  granting  of  such  injunctions. 
This  indeed  returned  to  a  practice  which  had  been  re- 
quired by  statute  in  the  Federal  courts  some  fifteen  or 
twenty  years  before.  A  bill  called  the  Gilbert  Bill  was 
introduced  in  Congress  by  Mr.  Gilbert  of  Indiana,  to 
require  that  no  injunction  should  issue  against  a  de- 
fendant in  such  cases  until  he  had  a  chance  to  be  heard 
in  a  court  and  explain  just  exactly  what  he  intended 
to  do  and  to  show  that  he  did  not  intend  in  any  way 
illegally  to  infringe  upon  the  rights  of  his  employers. 
The  Gilbert  Bill  was  introduced,  but  then  Mr.  Gompers, 
representing  the  Federation  of  Labor,  came  before  the 
committee  and  said  that  the  bill  was  not  satisfactory  to 
him.  He  went  before  the  President  and  the  Speaker, 
Mr.  Cannon,  and  demanded  not  the  Gilbert  Bill,  but 
demanded  that  all  injunctions  should  be  abolished  and 
that  a  bill  should  be  passed  which  I  am  about  to  de- 
scribe. 

The  first  section  of  the  Gompers  Bill  provides  that 
no  Federal  court  shall  have  the  power  to  enjoin  men 
from  unlawfully  injuring  the  business  of  another  in  a 
labor  dispute.  The  claim  made  by  Mr.  Gompers  and 
those  who  support  the  bill,  is  that  under  ancient  prac- 
tice in  equity  injunctions  issued  only  to  protect  prop- 
erty, and  business  is  not  a  property  right,  and  that  for 
the  lower  Federal  courts  to  protect  a  business  from  un- 
lawful injury  is  a  judicial  usurpation.  The  Supreme 
Court  of  the  United  States  has  decided  that  injunctions 
may  properly  issue  to  protect  either  a  property  right 
or  a  right  of  a  pecuniary  nature.  The  issue  therefore 
made  by  Mr.  Gompers  and  his  associates  is  shortly 
stated  thus :  Whether  the  business  that  a  man  has  built 


AND  ADMINISTRATION  147 

up,  the  business  that  he  is  doing  in  manufacturing  or 
otherwise,  including  as  it  does  the  good  will,  may  be 
injured  unlawfully  by  laboring  men  in  a  labor  dispute, 
and  they  be  exempted  from  any  interference  with  such 
unlawful  action  by  the  writ  of  injunction,  so  that  all  he 
can  do  to  protect  his  business  in  a  private  suit  is  to  bring 
a  suit  for  damages  and  to  have  the  matter  tried  before 
a  jury  to  determine  the  amount  of  the  damages.  This 
is  of  course  a  remedy  which  everyone  will  recognize  as 
wholly  inadequate  to  protect  him  in  his  business  right. 
I  am  willing  to  submit  to  any  body  of  laymen  the  ques- 
tion whether  a  man's  business,  involving  his  good  will, 
that  which  by  advertising  and  lawful  and  honest  deal- 
ing he  has  made  a  valuable  asset  to  him,  so  it  passes 
to  his  next  of  kin  when  he  dies,  and  may  be  sold  by  his 
administrator,  is  not  a  right  of  a  pecuniary  nature 
which  ought  to  be  protected  by  injunction  just  exactly 
as  any  property  right  ought  to  be.  All  the  courts 
have  decided  that  this  is  the  case,  and  the  charge  that 
the  lower  Federal  courts  or  the  state  courts,  and  there 
are  a  great  number  who  have  held  that  injunctions  may 
issue  in  such  cases,  have  usurped  their  authority,  falls  to 
the  ground.  In  this  view  the  President  declined  to 
recommend  the  passage  of  a  law  abolishing  the  writ  of 
injunction  in  labor  disputes,  and  he  did  so  on  the  ground 
that  to  do  so  would  be  to  place  laboring  men  who  were 
violating  the  rights  of  others  in  a  special  class  enjoying 
immunity  from  the  remedies  of  the  law. 

A  farmer  might  unlawfully  injure  a  man's  business, 
a  physician  might  injure  another  man's  business,  a  law- 
yer might  injure  another  man's  business,  and  against 
them  the  writ  of  injunction  would  issue,  but  this  bill 
contemplated  that  it  should  not  issue  in  such  cases 
against    a   laboring   man.     The   President    is    against 


148  A  REPUBLICAN  CONGRESS 

privileges  to  any  special  class  and  so  was  against  that 
bill.  Therefore  he  told  Mr.  Gompers  that  while  he 
strongly  favored  the  giving  of  notices  in  such  cases, 
he  would  certainly  invoke  as  against  lawless  working- 
men  the  same  writ  of  injunction  that  he  would  invoke 
against  lawless  capitalists ;  that  he  was  in  favor  of  a 
square  deal  to  all  and  special  privileges  to  none. 

The  second  section  of  the  Gompers  bill  in  effect 
legalizes  boycotts  and  blacklisting  and  forbids  their  re- 
straint or  punishment.  These  are  cruel  methods,  taken 
sometimes  by  employers,  sometimes  by  the  employees,  to 
effect  purposes  which  in  themselves  may  be  laudable, 
but  the  method  used  is  so  oppressive  and  cruel  that  the 
commission  appointed  by  the  President  to  investigate 
the  anthracite  coal  strike  in  Pennsylvania,  upon  which 
was  a  president  of  a  labor  union,  reported  unanimously 
that  boycotts  and  blacklisting  were  cruel  and  lawless 
and  should  not  be  supported  in  a  civilized  society  and 
that  they  ought  to  be  denounced  in  the  law.  I  ask  you 
whether  under  these  circumstances  a  bill  which  in  effect 
legalizes  both  ought  to  receive  the  votes  of  members  of 
Congress  ? 

In  the  hearing  before  the  committee,  Mr.  Gompers, 
as  representative  of  the  American  Federation  of  Labor, 
was  opposed  by  the  representatives  of  the  great  labor 
unions  of  the  railroads,  to  which  I  have  referred,  and 
in  the  statement  before  the  committee  it  was  repeatedly 
stated  that  there  had  never  been  a  President  who  had 
shown  as  much  sympathy  with  the  laboring  men  and  with 
the  labor  unions  as  Theodore  Roosevelt ;  so  much  active 
sympathy  and  so  great  desire  not  to  talk  about  them, 
but  to  do  things  in  their  behalf. 

Now  it  is  said  that  this  Congress  has  acted  injuri- 
ously to  labor  in  regard  to  the  Panama  Canal  and  the 


AND  ADMINISTRATION  149 

employment  of  labor.  The  eight-hour  law  applies  to 
work  done  directly  under  the  government.  The  At- 
torney-General, therefore,  held  that  it  applied  to  the 
day  laborers  on  the  Isthmus.  Congress  amended  the 
law  so  that  it  should  apply  only  to  American  laborers 
on  the  Isthmus  and  not  to  aliens.  The  Isthmus  of 
Panama  is  in  the  Tropics.  It  is  impossible  for  an 
American  laborer  to  work  there  except  under  cover, 
and  all  the  American  labor  possible  for  us  to  get  we 
use.  But  it  is  all  skilled  labor,  engineers,  machinists 
and  other  skilled  mechanics.  The  common  labor  the 
American  finds  impossible  to  do  because  of  the  terror  of 
the  tropical  sun  and  the  tropical  torrents  of  rain  that 
fall  during  the  rainy  season.  We  are  therefore  limited 
in  our  employment  of  common  labor  to  those  men  who 
can  stand  the  tropical  heat  in  their  day's  work  and  we 
are  now  using  tropical  negroes  from  the  West  Indies  on 
the  ditch.  These  men  have  nothing  of  the  industry  of 
the  American  workingman.  Instead  of  beginning  their 
work  on  Monday  morning  and  working  industriously 
and  with  effect  until  Saturday  night,  they  do  not  begin 
work  until  Tuesday  and  they  lay  off  work  on  Friday, 
and  it  is  very  rare  that  we  can  get  more  than  four  days 
a  week  out  of  six  from  them.  If  you  pay  them  twenty 
per  cent,  more  wages  they  will  work  just  twenty  per 
cent,  less,  for  they  want  only  to  feed  themselves  and 
to  enjoy  their  leisure. 

Now  the  eight-hour  law  in  the  United  States  affect- 
ing the  government  is  a  law  passed  as  a  type  and 
standard  for  other  employers  for  the  purpose  of  encour- 
aging a  reduction  in  the  hours  of  those  workingmen 
who  are  industrious  and  put  in  eight  hours  of  work  for 
six  days  in  the  week,  so  that  out  of  the  remainder  of 
the  twenty-four  hours  each  day  they  may  rest,  may 


150  A  REPUBLICAN  CONGRESS 

have  time  for  recreation  and  for  intercourse  with  their 
families  and  for  such  reading  as  they  may  be  willing  to 
do.  The  principle  of  such  law  and  the  reasons  for 
recognizing  it  have  not  the  slightest  application  to 
laborers  such  as  I  have  described,  the  tropical  negroes 
of  the  West  Indies.  We  never  could  get  out  of  them, 
although  we  employ  them  for  the  week,  eight  hours  a 
day  for  six  days.  We  must  build  the  canal,  and  to  al- 
low sentimental  considerations,  that  really  have  no 
relevance  at  all  to  the  work  under  such  conditions,  to 
increase  the  difficulties  that  we  have  found  in  getting 
the  necessary  labor,  is  to  fly  in  the  face  of  reason. 
Again,  the  administration  is  criticised  for  investigating 
the  question  with  a  view  possibly  of  employing  Chinese 
labor  on  the  Isthmus. 

If  Chinese  common  labor  is  more  efficient  than  the 
tropical  negro  labor,  why  then  should  we  not  employ  it, 
when  it  does  not  come  into  competition  in  any  way  what- 
soever with  American  labor,  when  the  work  is  to  be  done 
about  two  thousand  miles  away  from  the  territory  of 
the  United  States,  and  under  circumstances  which  will 
not  affect  in  the  slightest  workingmen  in  the  United 
States?  If  yellow  labor  is  able  to  withstand  the  effects 
of  the  tropical  sun,  what  difference  does  it  make  whether 
we  employ-  black  labor  or  yellow  labor  if  the  American 
laborer  cannot  do  the  work?  President  Roosevelt  be- 
lieves that  we  ought  to  use  reason  and  not  to  be  carried 
away  by  sentiment  that  has  no  basis  in  common  sense. 

And  now,  ladies  and  gentlemen,  I  come  to  another 
question  which  seems  to  be  a  local  question,  and  yet  one 
in  which  the  President  is  deeply  interested,  because  it 
is  a  question  much  wider  than  the  State  of  Idaho,  and 
reaches  out  into  the  neighboring  states  and  to  the  coun- 
try at  large.     First  I  ought  to  state  the  position  of  the 


AND  ADMINISTRATION  151 

President.  It  is  that  he  favors  and  has  the  most  active 
sympathy  with  all  branches  of  labor  and  all  branches 
of  labor  organizations ;  that  he  favors  and  has  sym- 
pathy with  all  corporate  enterprises  that  make  for  the 
prosperity  of  the  country ;  but  the  line  he  draws,  and 
the  line  he  insists  upon,  is  that  if  a  representative  of 
either  steps  beyond  the  law  and  violates  it,  he  must 
be  punished.  Now  in  the  neighboring  State  of  Colo- 
rado they  had  for  years  a  condition  in  which  both  min- 
ers and  state  officers  and  the  heads  of  mining  corpora- 
tions violated  the  law  in  a  war  against  each  other,  and 
the  President  is  utterly  out  of  sympathy  with  them  all. 
They  brought  disgrace  upon  the  State  of  Colorado, 
and  what  he  is  hoping  and  praying  for  is  that  condi- 
tions may  not  arise  in  Idaho  which  shall  lead  to  the  same 
results.  He  believes  that  the  election  of  Governor 
Gooding  is  one  of  the  most  important  issues  of  this 
campaign.  The  question,  as  he  views  it,  is  whether  an 
executive  officer,  charged  with  the  execution  of  the  law, 
who  attempts  to  bring  to  trial,  and  does  bring  to  trial, 
men  charged  with  a  heinous  crime,  shall  be  marked  for 
defeat  at  an  election  because  those  men  can  awaken 
sympathy  the  country  over  because  of  their  associations 
and  affiliations.  This  is  not  a  prosecution  by  a  corpo- 
ration. This  is  a  prosecution  by  the  State  of  Idaho 
to  vindicate  it  and  its  community  and  to  punish  a 
heinous  crime.  It  is  not  an  incident  in  a  war  between 
capital  and  labor.  It  is  merely  the  punishment  of 
crime.  Neither  Governor  Gooding  nor  anyone  inter- 
ested in  the  prosecution  says  that  the  men  are  guilty. 
What  he  says,  and  what  the  officers  of  the  law  charged 
with  the  duty  of  bringing  them  to  trial  say,  is  that 
there  is  evidence  enough  to  justify  their  indictment  by  a 
grand  jury  lawfully  impaneled,  and  therefore  that  they 


152  A  REPUBLICAN  CONGRESS 

ought  to  be  brought  to  trial.  It  is  said  that  there  was 
injustice  in  their  extradition.  All  the  papers  were 
made  regularly;  the  evidence  was  set  out  and  was  ex- 
amined by  the  Governor  of  this  State  before  he  pre- 
sented his  agent  with  a  request  for  a  warrant  of  extra- 
dition. The  evidence  was  examined  by  the  Governor  of 
Colorado  before  that  Governor  passed  upon  it  and 
issued  his  warrant  and  the  men  were  brought  here.  Now 
it  is  said  that  they  were  not  fugitives  from  justice  be- 
cause when  the  crime  was  committed  with  which  they 
were  charged  they  were  in  the  State  of  Colorado  and  the 
explosion  which  took  the  life  of  Governor  Steunenberg 
occurred  in  this  State.  I  ask  you  whether  an  executive 
officer  did  wrong  to  assume  that  a  man  from  one  State 
who  committed  a  crime  in  another,  though  not  person- 
ally present  in  the  other,  was  nevertheless  in  law  to  be 
regarded  as  a  fugitive  from  the  justice  of  the  State  in 
which  the  crime  was  committed?  Could  he  not  reason- 
ably assume  that  that  was  the  law  until  it  was  decided 
to  be  otherwise  by  the  highest  court  of  the  land?  In 
other  words,  might  he  not  assume  that  there  was  not  a 
premium  to  be  put  upon  doing  murder  across  State 
lines?  If  Governor  Gooding  is  defeated  in  this  election 
for  this  reason,  then  the  State  of  Idaho  and  the  people 
of  the  State  of  Idaho  will  serve  notice  on  the  world  that 
criminals,  or  men  charged  with  crime,  who  have  a  wide 
influence  and  can  awaken  a  sympathy  for  themselves, 
can  bring  down  condemnation  upon  the  officers  of  the 
law  having  the  courage  to  bring  them  to  trial,  and  that 
such  officer  is  to  be  condemned  by  his  own  people  and 
turned  out  of  office,  or  at  least  not  re-elected  when  he 
submits  himself  to  their  suffrages.  The  charge  is  made 
that  Governor  Gooding  is  going  to  railroad  these  men 
to  the  gallows.     I  assume — I  know — that  the  State  of 


AND  ADMINISTRATION  153 

Idaho  has  a  proper  legal  procedure  for  the  trial  of 
persons  charged  with  crime;  that  it  includes  a  petit 
jury  and  a  court  to  see  that  the  jury  does  its  duty  and 
is  instructed  as  to  the  law;  that  it  includes  a  Supreme 
Court  to  which  any  error  committed  in  that  trial  can 
be  carried;  and  that  it  includes  the  Supreme  Court  of 
the  United  States  to  which  Federal  questions  arising  as 
to  rights  under  the  Federal  constitution  can  be  carried 
for  decision  there.  The  prisoners  have  enjoyed  counsel. 
They  have  had  funds  furnished  to  them  by  their  friends. 
There  is  no  right  which  has  been  denied  them.  Why 
then  should  the  officers  of  the  law  who  are  simply  doing 
their  duty  be  punished  by  popular  disapproval  at  elec- 
tion? But  it  is  said  that  this  is  not  an  issue  in  this 
campaign.  Senator  Dubois,  an  old  friend  of  mine,  says 
that  I  had  no  business  to  come  to  this  State  to  speak 
on  this  issue.  Though  an  old  friend  of  Senator 
Dubois,  I  differ  frequently  with  him  on  political  sub- 
jects, and  one  of  the  most  frequent  differences  on  politi- 
cal subjects  is,  "What  is  the  issue  of  a  campaign?" 
Governor  Gooding  from  one  end  of  this  country  to  the 
other  is  receiving  threatening  letters  from  those  who 
do  not  sympathize  with  the  crime  charged  to  Moyer  and 
Haywood  but  who  think  that  they  are  not  guilty.  He 
is  now  being  opposed  in  his  election  by  many  men  who 
are  going  all  over  this  State  and  spending  money  for 
the  purpose.  If  then  he  is  defeated,  I  ask  you  whether 
the  country  is  not  likely  to  charge — will  not  necessarily 
charge — that  the  reason  for  his  defeat  is  because  he  had 
the  courage  to  do  his  duty?  One  Democratic  paper  (I 
do  not  know  but  that  there  are  others)  in  one  part  of 
the  State  invites  opposition  to  Governor  Gooding  and 
a  vote  for  his  opponent  because  Governor  Gooding 
brought  Moyer  and  Haywood  to  this  State.     In  other 


154        CONGRESS  AND  ADMINISTRATION 

parts  the  Democratic  papers  follow  the  Democratic 
platform,  which  is  in  favor  of  law  and  order 
and  the  punishment  of  those  responsible  for  crime.  I 
assume  that  the  opponent  of  Governor  Gooding  is  a 
law-abiding  citizen  and  would  obey  the  law,  but  he  can 
not  be  elected  without  the  aid  of  those  who  are  opposing 
Governor  Gooding  on  the  ground  that  he  did  his  duty. 
Therefore  I  do  not  care  what  is  said  with  respect  to 
other  issues,  the  issue  of  the  supremacy  of  the  law  is  the 
real  issue — the  standing  up  for  your  officials  who  have 
courage  in  face  of  explosions,  in  face  of  hostile  and 
powerful  interests  to  enforce  the  law.  The  supremacy 
of  the  law  under  such  circumstances  is  an  issue  that 
overshadows  all  issues  and  ought  therefore  to  lead  all 
patriotic  citizens,  without  regard  to  party,  to  support 
your  faithful  official. 


THE  LEGISLATIVE  POLICIES  OF  THE  PRES- 
ENT ADMINISTRATION 

columbus,  ohio,  august  19,  1907 

quickening  of  public  conscience  in  midst  of 
prosperity 

Members  of  the  Buckeye  Republican  Club  and 
Fellow-Citizens  of  Ohio  :  The  present  is  a  period 
of  the  greatest  prosperity,  general  comfort  and  even 
luxury.  Throughout  this  country,  the  demand  for  labor 
has  increased  wages  to  a  higher  point  than  ever  known 
before.  The  compensation  of  skilled  labor  now  fre- 
quently exceeds  that  of  certain  professions,  like  teaching 
and  the  ministry.  Wealth  has  accumulated  enormously 
in  the  hands  of  individuals  and  never  before  have  rich 
men  given  so  freely  of  their  fortunes  to  educational  and 
charitable  objects.  Such  conditions  are  apt  to  dim  and 
dull  the  eye  and  the  ear  of  the  people  to  abuses  and  dis- 
honesty in  the  body  politic  and  social.  In  such  periods 
in  the  history  of  ancient  republics  their  foundations 
were  sapped  and  their  fall  ultimately  brought  about. 
Prophets  of  evil  have  foretold  the  same  fate  for  this 
Republic.  They  have  been  refuted.  In  spite  of  the 
general  comfort,  there  have  been  made  manifest  by  signs 
not  to  be  misunderstood,  a  quickening  of  the  public  con- 
science and  a  demand  for  the  remedy  of  abuses,  the 
outgrowth  of  this  prosperity,  and  for  a  higher  stand- 
ard of  business  integrity.  Every  lover  of  his  country 
should  have  a  feeling  of  pride  and  exaltation  in 
this  evidence  that  our  society  is  still  sound  at  the 
core. 

155 


156  THE  LEGISLATIVE  POLICIES  OF 

i 

ABUSES  IN  RAILWAY  DISCRIMINATIONS 

I  have  been  invited  by  your  body  to  discuss  the  na- 
tional issues.  Some  of  these  involve  the  abuses  over 
which  the  public  conscience  has  been  aroused,  and  the 
proper  remedies  for  their  removal.  The  first,  and  pos- 
sibly the  greatest,  abuse  has  been  in  the  management  of 
the  arterial  system  of  the  country  which  the  interstate 
railroads  form.  Any  unjust  discrimination  in  the  terms 
upon  which  transportation  of  freight  or  passengers  is 
afforded  an  individual  or  a  locality,  paralyzes  and 
withers  the  business  of  the  individual  or  the  locality 
exactly  as  the  binding  of  the  arteries  and  veins  leading 
to  a  member  of  the  human  body  destroys  its  life. 

FAILURE  OF  OLD  INTERSTATE   COMMERCE  LAW  AND 
CAUSES 

The  result  of  twenty  years9  operation  under  the  inter- 
state commerce  act  of  1887,  passed  to  restrain  abuses 
of  unjust  discrimination  and  unreasonableness  of  rates, 
was  that  the  railroads  came  to  regard  the  action  of  the 
commission  it  created  as  of  no  importance.  The  de- 
lays, due  to  the  necessity  of  resorting  to  the  courts  to 
try  out  the  merits  of  every  order  of  the  commission,  be- 
fore it  became  effective,  made  the  remedy  of  the  com- 
plaining shipper  or  locality  so  slow  and  burdensome  that 
in  contested  cases  it  was  no  remedy  at  all.  The  com- 
mission was  not,  under  the  old  act,  authorized  to  fix 
reasonable  rates.  It  could  only  say  that  a  particular 
rate  was  unreasonable  and  order  a  railroad  to  change  its 
rate  and  make  it  reasonable.  The  railroad  might  fix 
a  new  rate  at  anything  less  than  the  rate  declared  to  be 
unreasonable,  and  if  the  reduction  made  was  not  suffi- 


THE  PRESENT  ADMINISTRATION         157 

cient,  a  new  action  had  to  be  brought  to  decide  that 
the  new  rate  was  also  unreasonable. 

president  eoosevelt's  recommendation — new 
rate  bill, 

Made  aware  of  the  moribund  condition  of  railway 
regulation  under  the  old  law  and  of  the  widespread 
abuses,  which  prevailed  in  railway  management,  Presi- 
dent Roosevelt,  in  his  message  of  1904,  recommended 
that  the  powers  of  the  commission  be  largely  increased ; 
first,  by  enabling  the  commission  to  fix  rates,  and  second, 
by  making  its  order  effective  against  the  carriers  with- 
out resort  to  courts  to  compel  performance.  He  asked 
that  it  be  made  an  administrative  tribunal  with  real 
power.  This  was  done  by  the  passage  of  the  Rate  Bill, 
in  June,  1906.  The  new  act  enables  the  commission 
to  fix  rates  and  gives  efficacy  to  all  of  its  orders  by 
providing  that  they  shall  go  into  effect  thirty  days 
after  they  are  made,  unless  suspended  by  an  order  of 
court,  and  failure  to  comply  with  them  is  punishable 
by  a  fine  of  $5,000  a  day  during  the  delinquency.  Ex- 
press companies,  sleeping  car  companies,  and  oil  pipe- 
line companies  are  brought  under  the  jurisdiction  of  the 
commission  as  common  carriers.  The  act  gives  the 
commission  power  to  fix  rates  for  the  various  inci- 
dental services  performed  by  railways  at  terminals  and 
on  the  journey  and  to  require  them  to  be  performed  for 
every  shipper.  By  withholding  such  services  from  one, 
and  extending  them  to  another,  and  by  imposing  vary- 
ing charges  for  them,  companies  have  been  able  in  the 
past  to  make  them  a  convenient  instrument  for  dis- 
crimination. The  new  law  requires  the  publication  of 
rates  charged  for  such  incidental  services.  Railroads 
are   compelled  to  furnish   cars  without   discrimination 


158  THE  LEGISLATIVE  POLICIES  OF 

for  the  movement  of  traffic.  After  May,  1908,  they 
are  confined  in  their  business  strictly  to  transportation 
by  a  provision  forbidding  them,  after  that  date,  to 
transport  for  themselves  anything  but  what  is  intended 
for  their  use  as  common  carriers.  Experience  has 
shown  that  the  railroads  can  not  be  trusted  to  deal  fairly 
in  matters  of  transportation  between  themselves  and 
their  competitors  in  an  outside  business.  The  new  law 
makes  radical  changes  in  the  matter  of  the  publication 
of  rates.  Under  the  old  law,  by  means  of  what  was 
called  the  "  midnight  tariff,"  a  railroad  company  gave 
favored  shippers  advance  information  of  a  contemplated 
reduction  of  rate  and  immediately  restored  the  old  rate 
when  these  shippers  had  profited  by  it.  Thirty  days' 
notice  is  now  required  of  any  change  in  the  rates  unless 
the  commission,  for  good  cause,  modifies  the  require- 
ment. 

RESEMBLES   NATIONAL   BANKING  ACT 

Again,  the  new  law  enables  the  commission  to  pre- 
scribe a  uniform  system  of  accounting  for  railroads. 
Under  the  old  law  the  commission  could  call  for  a  report 
of  the  railroads  and  might  ask  questions  of  railroads, 
but  it  had  no  way  to  compel  a  compliance  with  its  re- 
quest, and  no  penalty  was  provided  in  the  law  for 
failure  to  make  the  full  report.  Under  the  new  law, 
annual  reports  must  be  made  under  oath,  and  penalties 
are  prescribed  for  failure  to  file  them  with  the  com- 
mission within  a  certain  time.  The  commission  can  call 
for  monthly  or  special  reports.  It  may  prescribe  the 
bookkeeping  methods  of  the  carrier  and  has  access  at 
all  times  through  examiners  to  the  carrier's  books. 
The  carrier  is  forbidden  to  keep  any  other  books  than 
those  prescribed.      The  commission's   authority,  under 


THE  PRESENT  ADMINISTRATION         159 

the  new  law,  over  interstate  commerce  railroads  is  thus 
in  many  respects  like  that  of  the  Comptroller  of  the 
Currency  over  National  Banks,  which  has  the  approval 
and  confidence  of  the  country. 

GREAT    OPPOSITION    BY   RAILROADS THEIR   ARGUMENTS 

AGAINST   BILE 

Never  before  was  there  such  a  united  opposition  by 
the  railroad  interests  to  any  National  measure  as  they 
instituted  against  the  Rate  Bill.  A  campaign  of  edu- 
cation was  entered  upon,  speeches  were  made  in  every 
part  of  the  country  and  literature  was  showered  upon 
the  members  of  every  community,  with  the  hope  of  con- 
vincing the  public  that  the  bill  was  a  dangerous  inno- 
vation. 

The  objections  urged  against  it  were  three:  First,  it 
was  said  to  be  unwise  because  it  was  a  departure  from 
the  laissez-faire  doctrine  of  as  little  government  as  pos- 
sible, and  was  a  long  step  toward  socialism  and  Govern- 
ment ownership. 

OUTRAGED  PUBLIC  OPINION  CARRIED  THE  BILL 

The  revelations  of  infidelity  to  trust  obligations  in  the 
Insurance  investigations  in  New  York,  the  fraudulent 
discriminations  in  the  traffic  of  the  coal-carrying  roads, 
disclosed  by  the  inquiry  made  by  the  interstate  com- 
merce commission,  and  the  disclosure  of  secret  rebates 
on  an  enormous  scale  granted  the  Standard  Oil  Com- 
pany by  the  railroads  in  the  report  of  Mr.  Garfield,  as 
Commissioner  of  Corporations,  overcame  such  a  specious 
argument,  created  a  strong  public  opinion  in  favor  of 
a  radical  remedy  against  all  dishonest  corporate  prac- 
tices, and  held  up  the  hands  of  those  supporting  the 
bill. 


160  THE  LEGISLATIVE  POLICIES  OF 

SECOND    OBJECTION INCOMPETENCY   OF    COMMISSION   TO 

FIX  RATES PROVED  TOO   MUCH 

The  second  ground  of  opposition  was  that  a  tribunal 
like  the  commission  was  utterly  unable  to  fix  rates, — 
that  the  fixing  of  rates  was  such  a  difficult  matter, 
that  only  the  expert  traffic  managers  of  railroads  were 
competent  for  the  work ;  that  each  rate  was  so  connected 
with  every  other  that  it  was  impossible  for  a  body  of 
laymen  to  reach  a  safe  and  just  conclusion  in  respect 
to  any  one  rate,  without  creating  hopeless  confusion. 
The  argument  proved  too  much.  If  the  commission 
could  not  fix  rates,  then  neither  it  nor  a  court  could 
safely  determine  whether  a  rate  was  unreasonable,  for 
exactly  the  same  expert  knowledge  was  needed  to  say 
that  a  rate  was  unreasonable  as  to  say  what  was  a 
maximum  reasonable  rate.  Indeed,  in  the  natural  men- 
tal process,  a  maximum  reasonable  rate  must  be  deter- 
mined before  declaring  the  rate  in  question  unreason- 
able. All  this  inevitably  led  to  the  conclusion  that 
there  was  no  remedy  either  by'  Commission  or  Court 
against  unreasonable  rates,  that  the  public  was  helpless, 
and  that  the  whole  matter  must  still  be  left  to  the  only 
experts,  the  traffic  managers  of  the  railroads,  although 
it  was  the  dishonesty,  discrimination  and  injustice  of 
many  of  them  which  had  been  the  cause  of  the  trouble. 
Naturally,  the  argument  had  weight  neither  with  Con- 
gress nor  with  the  public. 

CONSTITUTIONAL    OBJECTION    BY    RAILROADS    WITHOUT 
WEIGHT 

The  third  and  final  objection  was  that  the  law  was 
invalid  in  that  Congress  was  thereby  delegating  its 
legislative  power  to   another  body,  and  was  violating 


THE  PRESENT  ADMINISTRATION         161 

the  general  constitutional  rule  that  delegated  power 
can  not  be  delegated.  The  rule  has  an  exception.  There 
may  be  delegation  of  legislative  power  where  the  pur- 
pose in  the  original  conferring  of  the  power  can  be 
subserved  only  by  its  delegation  to  an  agent.  It  is 
admitted  that  the  constitution  gives  Congress  the  power 
to  fix  rates.  Obviously,  however,  it  is  impossible  for 
Congress  as  a  body  to  spend  the  time  and  labor  to  do  so. 
If  the  power  is  to  be  exercised  at  all,  practically  it  can 
be  done  only  through  a  tribunal  or  an  agency  like 
that  of  the  interstate  commerce  commission.  Hence 
Congress  may  delegate  the  power  under  proper  legisla- 
tive limitations  and  rules  of  decision.  A  similar  con- 
clusion has  been  reached  by  a  number  of  State  courts 
with  reference  to  the  power  of  legislatures  under  State 
constitutions  presenting  the  same  question,  and  while 
the  case  has  not,  with  respect  to  a  Federal  commission, 
been  brought  directly  before  the  Supreme  Court  of  the 
United  States,  there  is  a  plain  dictum  in  one  decision 
in  favor  of  the  validity  of  such  delegation  of  legis- 
lative power. 

SMALL   VOTE   AGAINST    BILL 

The  opponents  of  the  bill  were  not  able  with  these 
objections  to  muster  more  than  seven  negative  votes  in 
the  House  of  Representatives,  or  three  votes  in  the 
Senate. 

OPPONENTS  OF   RATE  BILL  NOW  BELITTLE  IT  AND  PRAISE 
ELKINS   BILL 

The  opponents  of  the  measure  continue  to  denounce 
it,  but  now  instead  of  pointing  out  its  disastrous  effect, 
they  say  it  is  a  failure  and  that  in  the  year  since  its 
passage,   it  has   not   helped   a   single   shipper.      They 


162  THE  LEGISLATIVE  POLICIES  OF 

insist  that  the  only  effective  and  all-sufficient  law  to 
regulate  railways  is  the  Elkins  act,  passed  in  1903,  and 
that  this  is  shown  by  the  fact  that  all  the  prosecutions 
in  which  convictions  have  been  had  against  railway  com- 
panies and  favored  shippers  in  the  last  two  years,  have 
been  under  the  Elkins  Act,  and  not  under  the  Rate  Bill. 
Let  us  look  into  the  facts  in  regard  to  this  allegation. 
The  chief  prosecutions  which  have  been  instituted  have 
been  criminal  indictments  against  the  Sugar  Trust  and 
the  Standard  Oil  Company,  and  certain  railways  and 
their  agents  and  officers  for  taking  and  giving  secret 
money  rebates.  They  could  not  have  been  brought 
under  the  Rate  Bill,  because  the  acts  prosecuted  were 
committed  before  the  passage  of  the  Rate  Bill. 

EFFECT  OF  ELKINS  BILE  ON  EXISTING  CRIMINAL  PROSECU- 
TIONS  WAS   TO    SAVE    REBATE    GIVERS   AND 
TAKERS   FROM   JAIL 

It  is  true  that  these  prosecutions  were  instituted  under 
the  Elkins  Act,  but  it  is  also  true  that  had  the  Elkins 
bill  never  been  passed,  the  same  acts  could  and  doubt- 
less would  have  been  prosecuted  as  giving  and  receiving 
unjust  discriminations  against  the  persons  committing 
them  under  the  amendment  to  the  Interstate  Commerce 
Act  of  1889  which  the  Elkins  law  supplanted.  The 
Elkins  law  was  really  an  amendment  to  the  Interstate 
Commerce  Act,  enlarging  and  making  more  effective 
tlie  procedure  for  prosecuting  violations  of  the  prohibi- 
tions of  that  law  and  describing  them  in  more  compre- 
hensive form.  It  gave  greater  latitude  in  respect  of  the 
district  where  the  offense  would  be  prosecuted  and  it 
made  the  company  necessarily  responsible  in  a  fine  for 
the  act  of  its  agents,  without  other  proof  of  direct  com- 
plicity than  the  agency.     Under  the  1889  amendment, 


THE  PRESENT  ADMINISTRATION         168 

however,  the  individuals  convicted  could  have  been  sent 
to  the  penitentiary,  whereas  under  the  Elkins  Act  the 
punishment  by  imprisonment  was  taken  away  while  the 
fine  was  increased.  The  chief  effect  the  Elkins  law  had 
on  these  particular  prosecutions  which  have  been  given 
so  much  prominence,  was  to  make  it  easier  to  convict  the 
corporation  and  to  increase  its  fine,  but  to  save  the 
guilty  individual  perpetrators  from  imprisonment. 

RAILROADS  FAVORED  ELKINS  BILL  BECAUSE  OF  ABOLITION 
OF    JAIL    PENALTY 

It  is  well  understood  that  the  Elkins  bill  was  passed 
without  opposition  by,  and  with  the  full  consent  of,  the 
railroads  and  that  the  chief  reason  for  this  was  the 
elimination  of  the  penitentiary  penalty  for  unjust  dis- 
criminations. The  abolition  of  imprisonment,  as  a  pos- 
sible penalty,  was  unfortunate.  Experience  has  shown 
that  a  mere  fine  is  generally  not  enough  to  deter  a  cor- 
poration from  violation  of  the  law,  because  it  then  be- 
comes a  matter  of  mere  business  speculation.  The  im- 
prisonment of  two  or  three  prominent  officers  of  a  rail- 
way company,  or  a  trust,  engaged  in  giving  or  receiv- 
ing secret  rebates,  would  have  a  greater  deterrent  effect 
for  the  future  than  millions  in  a  fine. 

RATE  BILL  RESTORED  JAIL  PENALTY 

In  the  Rate  Bill,  Congress  amended  the  Elkins  bill 
and  restored  imprisonment  as  part  of  the  punishment 
for  secret  rebates.  Had  the  rebating  and  dishonest 
practices  of  the  railroad  companies  and  the  trusts,  been 
as  clearly  known  to  Congress  and  the  public,  when  the 
Elkins  bill  was  considered,  as  they  were  when  the  Rate 
Bill  was  passed,  the  Elkins  bill  would  not  have  passed 
so  smoothly. 


164  THE  LEGISLATIVE  POLICIES  OF 

NARROW  SCOPE  OF  ELKINS  BILL  AS   COMPARED  WITH 
RATE  BILL 

I  do  not  wish  to  decry  the  merits  of  the  Elkins  bill  be- 
cause, aside  from  its  elimination  of  imprisonment  as 
punishment,  it  is  a  most  useful  measure,  but  its  scope  is 
so  narrow  in  respect  of  the  regulation  of  railways  that 
it  can  not  be  compared  in  importance  of  operation  and 
effect  to  the  Rate  Bill.  The  increase  by  the  Rate  Bill 
in  the  powers  of  the  commission  in  supervision,  inves- 
tigation, rate-fixing  and  effective  order-making  to  pre- 
vent discrimination  is  great.  Elaborate  machinery  for 
making  it  difficult  to  violate  the  law  without  discovery 
and  for  discovering  violations  when  they  exist,  and  for 
affording  affirmative  and  mandatory  relief  in  requir- 
ing railroads  to  furnish  equal  facilities  to  all,  is  found 
in  the  provisions  of  the  New  Rate  Bill.  Criminal  prose- 
cutions will  continue  to  be  under  the  Elkins  law,  but  as 
amended  by  the  new  Rate  Bill.  This  is  because  the 
Elkins  law,  as  amended,  contains  the  part  of  the  inter- 
state commerce  legislation  which  prescribes  the  punish- 
ment for  violations  of  the  law  and  so,  in  ordinary  prac- 
tice, comes  into  operation  after  the  violations  have  been 
discovered  under  the  other  provisions  of  the  Rate  BilL 

IF   THE  RATE   BILL  IS  INEFFECTIVE  WHY  SUCH   RAILROAD 
OPPOSITION? 

If  the  Rate  Bill  was  likely  to  be  a  failure  and  to 
accomplish  nothing  in  the  regulation  of  their  business, 
the  query  naturally  arises,  Why  did  the  railroads  spend 
so  much  money  and  so  great  effort  to  defeat  it?  Why 
was  it,  if  it  had  no  effect,  that  in  the  interval  between  the 
time  of  its  passage  and  its  going  into  effect,  there  were 
filed  with  the  interstate  commerce  commission  more  no- 


THE  PRESENT  ADMINISTRATION         165 

tices  of  reduced  rates  by  the  railroads  than  ever  had 
been  filed  in  the  previous  twenty  years  of  the  life  of 
the  interstate  commerce  law?  It  is  true  that  later  on, 
many  rates  were  properly  raised  by  the  railroads  be- 
cause of  an  increase  in  wages  and  other  cost  of  main- 
tenance; but  I  only  cite  the  prompt  action  of  the  rail- 
ways on  the  passage  of  the  bill  as  a  recognition  by 
them  of  the  importance  of  the  measure  and  the  in- 
creased power  of  the  commission. 

GOOD   EFFECT   OF   RATE   BILL   NATURALLY  NOT  SHOWN  IN 
STATISTICS 

The  Rate  Law  has  not  been  in  operation  a  year,  and 
the  beneficial  results  from  its  operations  though  clear, 
are  not  ready  to  be  presented  in  statistical  array. 
Moreover,  the  chief  benefit  of  the  act  is  likely  to  be  its 
influence  in  discouraging  attempts  to  renew  the  old 
abuses  and  such  benefits  do  not  appear  in  statistics. 
The  immediate  effect  of  the  act  has  certainly  been 
to  compel  railroads  to  regard  the  commission  now  as  the 
important  tribunal  whose  views  they  must  follow.  They 
are  manifesting  every  outward  disposition  strictly  to 
gomply  with  the  law  and  to  avoid  prosecution  or  com- 
plaint. The  time  has  gone  by  in  which  the  action  of 
the  commission  can  be  ignored  or  laughed  at.  The 
commission  itself  has  taken  up  its  duties  with  renewed 
energy,  has  proceeded,  without  awaiting  the  intervention 
of  the  railroads  or  the  filing  of  complaints,  to  con- 
strue the  act  by  administrative  rulings,  in  order  to 
assist  the  railroads  in  complying  with  the  law.  With 
the  large  powers  for  correcting  evils,  which  the  com- 
mission now  has,  we  may  reasonably  expect  a  marked 
improvement  in  the  conduct  of  the  railways  of  this 
country. 


166  THE  LEGISLATIVE  POLICIES  OF 


THE  ATTITUDE  OF  THE  COUNTRY  TOWARD  THE  RATE  BILL, 

The  passage  of  the  Bill  was  taken,  the  country  over, 
and  properly  taken,  as  a  most  important  step  toward 
the  suppression  of  abuses  which  had  grown  up  in  a 
period  of  tolerant  prosperity.  It  was  thought  to  be 
an  effective  cure  of  the  arterial  system  of  the  country 
which  had  become  poisoned  by  dishonesty,  injustice  and 
fraud.  It  was  a  great  solace  to  the  conscience  of  the 
country  outraged  by  recent  revelations  of  railway  and 
trust  management.  Passed  at  the  instance  of  Mr. 
Roosevelt,  it  stands  as  a  monument  to  the  principle 
which  he  has  incessantly  maintained  in  speech  and  ac- 
tion, that  the  laws  must  be  so  made  that  they  can  be 
enforced  as  well  against  the  sins  of  the  wealthy  and  the 
powerful  as   against  those  of  the  poor. 

ERROR  OF  MR.  BRYAN  AS  TO  COURT  REVIEW  IN  RATE  BILL 

Mr.  Bryan  contends  that  the  law  was  greatly  weak- 
ened in  authorizing,  or  recognizing  judicial  interven- 
tion to  restrain  the  orders  of  the  commission.  This  crit- 
icism has  not  the  slightest  foundation.  There  can  be 
no  judicial  appeal  in  the  nature  of  a  complete  review 
on  the  merits  from  the  commission  to  the  Supreme  Court 
or  to  the  circuit  court  of  the  United  States,  for  the  com- 
mission is  not  a  court  of  first  instance,  but  only  a  mere 
administrative  tribunal.  The  only  power  a  Federal 
Court  could  validly  exercise  would  be  to  decide  first, 
whether  the  administrative  tribunal  had  followed  cor- 
rectly the  limitations  upon  its  course  of  action  imposed 
by  the  act  of  Congress  creating  it,  and  second,  whether 
its  order  taken  as  an  authorized  expression  of  the  legis- 
lative power  deprived  the  railroad  company  of  its  right, 
under  the  fourteenth  amendment,  to  derive  a  fair  profit 


THE  PRESENT  ADMINISTRATION         167 

from  the  use  of  its  property.  Whether  the  Federal 
courts  were  expressly  given  this  power  in  the  law  or 
not,  they  would  have  had  it  under  their  general  juris- 
diction. If  their  power  had  not  been  recognized  and  a 
purpose  of  Congress  had  been  expressed  to  prevent  an 
appeal  to  the  courts,  the  law  would  have  been  invalid. 
The  extent  of  the  judicial  remedy  could  not  be  either 
diminished  or  enlarged  by  Congressional  action,  with 
due  regard  to  the  validity  of  the  act.  Congress  was 
wise,  therefore,  in  not  attempting  to  define  what  the 
court  should  or  should  not  do,  and  in  merely  recogniz- 
ing the  right  of  the  companies  to  appeal  to  the  Federal 
courts  to  test  the  validity  of  the  action  of  the  com- 
mission. No  victory  was  gained  by  either  the  conserva- 
tive or  the  radical  party  in  this  regard. 

IMPORTANCE   OF  COURTS  IN  UPHOLDING  CONSTITUTIONAL 
GUARANTIES 

By  what  I  have  said,  however,  I  would  not  for  a  mo- 
ment be  thought  to  favor  any  legislation  which  would 
exclude  railroad  companies  or  anyone  else  from  a 
recourse  to  the  courts  to  protect  them  in  their  statutory 
and  constitutional  rights.  The  courts,  and  especially 
the  Supreme  Court  of  the  United  States,  are  the  part 
of  our  government  indispensable  in  making  good  those 
guaranties  of  life,  liberty,  property  and  the  pursuit  of 
happiness  given  in  the  Constitution  and  placed  there 
by  the  people  themselves  to  curb  their  own  hasty  action 
under  stress  of  sudden  impulse  or  with  too  little  de- 
liberation. The  administration  of  exact  justice  by 
courts  without  fear  or  favor,  unmoved  by  the  influence 
of  the  wealthy  or  by  the  threats  of  the  demagogue, 
is  the  highest  ideal  that  a  government  of  the  people 
can  strive  for,  and  any  means  by  which  a  suitor,  how- 


168  THE  LEGISLATIVE  POLICIES  OF 

ever  unpopular  or  poor,  is  deprived  of  enjoying  this  is 
to  be  condemned.  It  is  important,  however,  that  appeals 
to  judicial  remedies  should  be  limited  in  such  a  way 
that  parties  will  not  use  them  merely  to  delay  and  so 
clog  efficient  and  just  executive  or  legislative  action, 

NEW    AMENDMENTS    TO    THE    RATE    BILL,    NEEDED 

CLASSIFICATION 

The  Rate  law  does  not  go  far  enough.  The  practice 
under  it  has  already  disclosed  the  necessity  for  new 
amendments  and  will  doubtless  suggest  more.  Such  is 
the  true  method — the  empirical  and  tentative  method — 
of  securing  proper  remedies  for  a  new  evil.  The  classi- 
fication of  merchandise  for  transportation  is  a  most 
important  matter  in  rate-fixing,  for  by  a  transfer  from 
one  class  to  another,  the  rate  is  changed  and  may  work 
injustice.  With  the  power  of  rate-fixing,  it  would 
seem,  should  go  the  power  in  the  commission  to  classify 
and  to  prescribe  rules  for  uniform  classification  by  all 
railroads. 

AMENDMENT  NEEDED  TO   PREVENT  OVER-CAPITALIZATION 

Recent  revelations  have  emphasized  the  pernicious 
effect  of  the  so-called  over-capitalization  of  railroads 
which  aids  unscrupulous  stock  manipulators  in  dispos- 
ing of  railway  securities  at  unreasonably  high  prices  to 
innocent  buyers.  This  evil  would  not  of  itself  justify 
Federal  restraint  or  control  because  such  stock  and 
bonds  are  usually  issued  under  State  charters.  The 
practice,  however,  has  a  tendency  to  divert  the  money 
paid  by  the  public  for  the  stock  and  bonds  which  ought 
to  be  expended  in  improving  the  road  bed,  track  and 
equipment  of  railways  into  the  pockets  of  the  dishonest 
manipulators    and   thus    to   pile   such   an   unprofitable 


THE  PRESENT  ADMINISTRATION         169 

debt  upon  a  railway  as  to  make  bankruptcy  and  a  re- 
ceivership probable  in  the  first  business  stringency. 
This  result,  in  an  interstate  railway,  necessarily  inter- 
feres with,  and  burdens,  interstate  commerce,  and  justi- 
fies the  exercise  of  the  regulative  power  of  Congress  to 
stop  the  practice.  A  railroad  company  engaged  in 
interstate  commerce  should  not  be  permitted,  therefore, 
to  issue  stock  or  bonds  and  put  them  on  sale  in  the 
market  except  after  a  certificate  by  the  interstate  com- 
merce commission  that  the  securities  are  issued  with  the 
approval  of  the  commission  for  a  legitimate  railroad 
purpose.  The  railroads  that  are  honestly  conducted 
would  accept  the  certificate  of  the  commission  as  a  valu- 
able one  in  the  markets  of  the  world,  and  only  railway 
stock  manipulators,  who  look  to  the  floating  of  watered 
securities  as  their  best  source  of  profit,  would  have 
reason  to  complain. 

AMENDMENTS   AGAINST   PURCHASE   OF   STOCK  IN    COMPET- 
ING  LINES  AND  AGAINST    COMMON   DIRECTORS 

A  much-used  means  of  eliminating  competition  among 
interstate  lines  serving  the  same  territory  is  the  ac- 
quisition by  one  company  of  the  stock  in  another  and 
the  election  of  directors  to  represent  that  stock.  This 
process  is  facilitated  by  the  uncontrolled  power  to  issue 
securities  beyond  the  needs  of  the  company  for  its 
legitimate  business  and  would  be  curbed  by  the  restric- 
tion proposed.  The  evil  ought  further  to  be  directly 
restrained  by  making  it  unlawful  for  an  interstate  rail- 
way to  acquire  stock  in  a  competing  line.  This  is  a 
simpler  remedy  of  meeting  the  evil  than  by  recourse  to 
the  anti-trust  law  under  the  Northern  Securities  case. 
In  addition  to  this,  competing  lines  should  be  prohibited 
from  having  directors  or  officers  in  common. 


170  THE  LEGISLATIVE  POLICIES  OF 


PROPOSED  AMENDMENTS  PLAINLY  CONSTITUTIONAL 

These  suggestions  of  additional  legislation  in  respect 
to  the  supervision  and  control  of  interstate  railways 
have  been  made  by  the  interstate  commerce  commission 
and  I  heartily  concur  in  them.  They  are  plainly  within 
the  Federal  jurisdiction  under  the  interstate  commerce 
clause.  I  do  not  think  that  in  order  to  accomplish  a 
good  which  the  Federal  Government  with  its  greater  re- 
sources and  wider  geographical  reach  can  bring  about 
more  quickly  and  efficiently,  the  constitutional  limits 
upon  Federal  action  should  be  blurred  out  or  an  un- 
doubted Federal  power  should  be  expanded  by  doubt- 
ful construction  into  a  field  which  really  belongs  to 
the  State.  But  the  right  of  Congress  to  take  any  ac- 
tion, not  confiscatory,  in  the  most  rigid  control  of  in- 
terstate commerce  can  not  be  denied. 

SUGGESTED   BY   HAREIMAN    CONSOLIDATIONS 

The  measures  taken  and  proposed  are  radical  per- 
haps, viewed  from  the  standpoint  of  the  laissez-faire 
doctrinaire  whose  ideas  have  been  allowed  to  prevail  in 
respect  of  railroad  management  down  to  the  present ; 
but  no  one  can  read  the  report  of  the  commission  on  the 
history  of  the  union  of  the  Southern  Pacific  and  Union 
Pacific  systems  with  the  Illinois  Central  system  without 
trembling  at  the  enormous  power  that  one  man,  by  the 
uncontrolled  use  of  the  stock  and  bond  issuing  power 
of  interstate  railways  under  State  charters,  has  ac- 
quired in  respect  of  a  vital  part  of  the  country's  busi- 
ness and  without  looking  for  some  means  of  remedying 
such  a  dangerous  tendency  which,  if  not  stopped,  will 
lead  to  the  absorption  of  all  the  railroads  of  the  country 
into  one  hand. 


THE  PRESENT  ADMINISTRATION         171 

RATE  BILl,  AND  PROPOSED  AMENDMENTS  NOT  SOCIALISTIC, 
BUT   THE   OPPOSITE 

The  contention  on  behalf  of  the  railroads,  already 
noticed,  that  such  supervision  as  the  Rate  Bill  and 
these  suggested  amendments  afford,  is  socialistic  and 
tends  to  Government  ownership,  is  utterly  without  basis. 
Efficient  regulation  is  the  very  antidote  and  preventa- 
tive of  socialism  and  Government  ownership.  The  rail- 
roads, until  now,  have  been  permitted  to  wield  without 
any  real  control  the  enormously  important  franchise 
of  furnishing  transportation  to  the  entire  country. 
They  have  constructed  280,000  miles  of  road.  In  cer- 
tain respects  they  have  done  a  marvelous  work  and  have 
afforded  transportation  at  a  cheaper  rate,  per  ton,  per 
mile  and  per  passenger,  than  in  any  country  in  the 
world.  They  have,  however,  many  of  them,  shamelessly 
violated  the  trust  obligation  they  have  been  under  to  the 
public  of  furnishing  equal  facilities  at  the  same  price 
to  all  shippers.  The  watering  of  stock  and  bonds  and 
the  over-capitalization  of  some  of  them  for  the  profit 
of  their  managers  have  prevented  the  needed  improve- 
ment of  their  railroads  in  construction  and  equipment. 
The  tremendous  demand  for  increased  facilities  due  to 
the  enormous  growth  of  business  shows  the  inadequacy 
of  their  equipment  and  construction.  While  they  might 
not  have  been  expected  to  meet  in  full  such  an  extraor- 
dinary demand,  the  obligations  some  of  them  have 
assumed  in  the  form  of  stocks  and  bonds  leave  no 
doubt  that,  had  the  money  they  represented  been  put 
into  the  roads  in  good  faith,  the  shortage  of  cars 
and  equipment  and  inadequacy  of  road  bed  and  track 
would  not  be  so  great.  They  discharge  a  public  func- 
tion.   They  have  been  weighed  in  the  balance  and  found 


172  THE  LEGISLATIVE  POLICIES  OF 

wanting.  The  remedy  for  the  evils  must  be  radical  to 
be  effective.  If  it  is  not  so,  then  we  may  certainly 
expect  that  the  movement  toward  Government  owner- 
ship will  become  a  formidable  one  that  can  not  be  stayed. 

OBJECTIONS    TO    GOVERNMENT    OWNERSHIP 

I  am  opposed  to  Government  ownership — 

First,  because  existing  Government  railways  are  not 
managed  with  either  the  efficiency  or  economy  of  pri- 
vately managed  roads  and  the  rates  charged  are  not  as 
low  and  therefore  not  as  beneficial  to  the  public ; 

Second,  because  it  would  involve  an  expenditure  of 
certainly  twelve  billions  of  dollars  to  acquire  the  inter- 
state railways  and  the  creation  of  an  enormous  national 
debt. 

Third,  because  it  would  place  in  the  hands  of  a  reck- 
less executive  a  power  of  control  over  business  and 
politics  that  the  imagination  can  hardly  conceive,  and 
would  expose  our  popular  institutions  to  danger. 

PROPOSED  RAILWAY  REGULATION  NOT  INCONSISTENT  WITH 
INDIVIDUALISM 

The  supervision  proposed  need  not  materially  reduce 
the  legitimate  operation  of  individualism  in  railway  en- 
terprise. It  will  indeed  limit  the  opportunity  to  ac- 
cumulate enormous  fortunes  through  over-capitalization 
or  secret  rebates,  but  the  legitimate  profit  which  comes 
from  close  attention  to  operation,  to  efficiency  of  serv- 
ice, and  economy  in  details  and  from  broad  conceptions 
of  new  methods  of  reducing  cost  without  impairing  the 
service  will  not  be  disturbed  in  the  slightest.  There  is 
no  attempt  to  take  away  the  property  of  the  railway 
companies ;  there  is  no  furnishing  of  public  money  to  the 
enterprise  and  no  public   officers   are  required  to  ad- 


THE  PRESENT  ADMINISTRATION         178 

minister  the  property.  There  is  no  more  attempt  in  this 
law  to  make  transportation  a  Government  business  than 
there  is  in  the  National  Banking  act  to  making  banking 
a  government  business. 

FAVORS    RAILWAY    RATE    AGREEMENTS    IF    SUBMITTED    TO 

AND  APPROVED   BY  INTERSTATE   COMMERCE 

COMMISSION 

The  movement  of  competing  railway  companies  to 
consolidate  arose  originally  from  fear  that  the  anti- 
trust act  forbade  them  to  make  agreements  as  to  uni- 
form tariffs.  If  they  were  now  permitted  to  make  such 
agreements  subject  to  the  approval  of  the  interstate 
commerce  commission,  such  a  tendency  would  lose  much 
of  its  force.  It  is  impossible  to  prevent  competing 
railways  from  seeking  to  make  their  tariffs  uniform  in 
order  to  prevent  an  unending  and  disastrous  tariff  war, 
and  though  such  agreements  are  against  the  law,  it  is 
perfectly  apparent  that  tacit  arrangements  for  uni- 
formity exist.  These  arrangements  do  not  prevent  the 
operation  of  competition,  from  time  to  time  as  one  com- 
pany finds  that  it  may  acquire  new  business  without  loss 
by  a  reduction  of  rate  and  insists  on  it,  but  they  do 
prevent  a  tariff  war  which  helps  neither  the  public  nor 
the  railway  by  violent  fluctuations  in  rates.  As  the 
public  now  asserts  the  right  to  fix  maximum  rates  and 
thus  to  eliminate  one  phase  of  competition,  it  is  logical 
to  permit  an  agreement  on  rates,  if  approved  by 
the  interstate  commerce  commission,  the  tribunal  ap- 
pointed to  fix  rates.  The  President  and  the  commission 
both  recommend  a  provision  permitting  such  agree- 
ments. In  this  way,  there  would  be  restored  that  re- 
spect for  law  which  many  railroad  men  in  the  last  dec- 
ade seem  to  have  lost.     Moreover,  every  company  under 


174  THE  LEGISLATIVE  POLICIES  OF 

such  a  system  would  be  a  policeman  to  see  to  it  that 
every  other  company  obeyed  the  agreement  and  the 
law,  and  strictest  obedience  would  be  secured. 

PHYSICAL  VALUATION 

Mr.  Bryan  is  most  insistent,  in  discussing  rate  regu- 
lation, that  the  present  physical  value  of  all  roads  in 
the  country  should  be  ascertained  for  the  purpose  of 
fixing  rates  by  allowing  to  the  railroad  companies  only 
a  fair  profit  on  such  valuation.  Whenever  the  inter- 
state commerce  commission  deems  it  important  as  an 
aid  in  fixing  rates  to  determine  what  it  would  cost  now 
to  rebuild  any  railroad,  it  has  complete  power  to  do 
so;  but  it  would  doubtless  be  found  in  respect  to  most 
of  them  that  in  spite  of  over-capitalization  and  lack 
of  economy  in  construction,  land  for  terminals  and 
right  of  way  and  the  cost  of  construction,  have  in- 
creased so  enormously  that  the  total  of  their  securities 
upon  which  they  pay  dividends  and  interest  is  not  much 
if  any  in  excess  of  present  physical  value.  More  than 
this,  physical  valuation,  as  the  President  pointed  out 
in  his  Indianapolis  speech,  and  as  the  Supreme  Court 
had  in  effect  said  before  him,  is  only  one  of  a  number 
of  data  to  be  considered  in  reaching  what  is  a  fair 
profit  upon  the  investment ;  and  in  determining  a  par- 
ticular rate,  the  proper  relation  between  that  rate  and 
the  total  net  profit  of  operation  is  so  complicated  with 
an  infinite  variety  of  other  circumstances  that  it  is 
most  difficult  in  rate-fixing  to  use  the  latter  to  affect  the 
former.  The  importance  of  fixing  rates,  complained  of 
as  too  great  in  and  of  themselves,  is  much  exaggerated ; 
for  the  overwhelming  evidence  is  that,  on  the  whole,  rates 
in  this  country,  especially  as  compared  with  those  of  all 
European    railroads,    many   of   which    are    owned   and 


THE  PRESENT  ADMINISTRATION         175 

operated  by  the  government,  are  low.  The  chief  evil 
consists  in  unjust  discrimination  in  rates  between  in- 
dividuals and  localities.  I  do  not  object  to  valuation, 
if  thought  relevant  to  any  issue,  but  I  merely  deprecate 
the  assumption  that  it  is  to  be  the  chief  means  of  a 
great  reform  in  rates. 

FRIGHTFUL    LOSS     OF     LIFE    AND     LIMB     AMONG    RAILWAY 
EMPLOYEES  REQUIRES  STRINGENT  REGULATIONS 

The  frightful  loss  of  life  and  limb  among  the  rail- 
way employees  of  this  country,  reaching  more  than 
4,000  killed  and  65,000  injured  in  one  year,  has  prop- 
erly attracted  the  attention  of  Congress  and  the  Legis- 
latures. It  makes  apparent  that  service  in  connection 
with  trains  of  a  railway  is  an  extra-hazardous  business 
and  may  well  call  for  Government  supervision  and  ex- 
ceptional rules  to  secure  the  safety  of  the  passengers 
and  reduce  the  danger  to  employees.  Congress,  years 
ago,  passed  stringent  laws  for  the  adoption  of  safety 
devices  to  protect  both  employee  and  passenger  on  in- 
terstate railways.  With  the  same  purpose,  it  has  re- 
cently limited  the  hours  of  continuous  service  for  which 
employees  on  such  railways  may  be  engaged. 

STATUTORY    RULE    FOR    LIABILITY    OF    INTERSTATE    RAIL- 
WAYS  TO   EMPLOYEES 

Finally,  it  has  regulated  the  rules  for  the  liability 
of  an  interstate  railroad  company  to  an  employee  in- 
jured in  its  service.  This  is  a  most  important  measure, 
for  an  unfortunate  lack  of  uniformity  has  existed  here- 
tofore in  respect  to  the  rules  of  liability  in  such  cases, 
dependent  on  the  court  in  which  the  case  has  been  tried. 
The  new  statute  makes  everything  uniform  as  to  inter- 
state  railroads.      It  has   introduced   into   Federal  law 


176  THE  LEGISLATIVE  POLICIES  OF 

what  is  called  the  comparative  negligence  theory  by 
which  if  an  employee  is  injured,  proof  of  negligence  on 
his  part  does  not  forfeit  his  claim  for  damages  entirely 
unless  the  accident  was  due  solely  to  his  negligence. 
If  there  was  negligence  by  the  company,  the  jury  is 
authorized  to  apportion  the  negligence  and  award  com- 
pensation for  the  proper  part  of  the  damage  to  the 
employee  and  the  question  of  negligence  is  always  for 
the  jury. 

ABOLITION  OF  FELLOW-SERVANT  RULE 

The  most  important  provision  of  this  law,  however,  is 
that  abolishing  what  is  known  as  the  fellow-servant  rule, 
by  which  an  employee  injured  can  not  recover  from  his 
employer  for  injury  sustained  through  the  negligence 
of  a  co-employee.  This  rule  was  incorporated  into  the 
law  by  Chief  Justice  Shaw,  of  Massachusetts,  on  the 
ground  of  public  policy.  It  was  acquiesced  in  by  the 
Courts  of  England  and  of  this  country.  Whatever  may 
have  been  the  wisdom  of  the  rule  originally,  a  change 
of  conditions  justifies  its  abrogation.  Public  policy 
can  be  changed  by  statute,  so  that  this  exemption  from 
liability  is  not  secured  by  the  constitution  to  the  railroad 
companies.  The  abolition  of  the  exemption  certainly 
furnishes  a  strong  motive  to  the  railroad  companies 
for  the  exercise  of  greater  care  in  the  selection,  super- 
vision and  control  of  all  of  their  employees,  which  tends 
not  only  to  the  safety  of  their  employees,  but  also  to  the 
safety  of  their  passengers. 

NEW    LAW    WILL   LEAD    TO    SETTLEMENT   OF   MOST   CLAIMS 
WITHOUT    SUIT 

With  these  changes,  all  claims  by  employees  against 
railroad  companies,  except  in  a  few  extreme  cases,  will 


THE  PRESENT  ADMINISTRATION         177 

doubtless  be  settled  by  the  railway  companies  without 
litigation,  just  as  they  now  settle  without  suit  sub- 
stantially all  claims  for  injuries  to  passengers.  The 
validity  of  this  law  is  under  consideration  by  the  Su- 
preme Court.  The  only  serious  doubt  in  regard  to  its 
constitutionality  grows  out  of  some  carelessness  of 
language  in  limiting  its  application  to  interstate  rail- 
ways and,  therefore,  even  if  the  present  law  should  fall, 
there  will  be  no  difficulty  in  reenacting  it  in  proper 
form, 

TRUSTS 

I  pass  now  from  railway  regulation  and  the  abuses 
arising  in  the  discharge  of  a  public  function  to  the  evils 
which  have  grown  out  of  the  combinations  existing  in 
private  business,  and  so  come  to  the  subject  of  Trusts. 
The  combination  of  capital  in  large  plants  to  manufac- 
ture goods  with  the  greatest  economy  is  just  as  neces- 
sary as  the  assembling  of  the  parts  of  a  machine  to 
the  economical  and  more  rapid  manufacture  of  what  in 
old  times  was  made  by  hand.  The  Government  should 
not  interfere  with  the  one  any  more  than  the  other. 
In  the  proper  operation  of  competition  the  public  will 
soon  share  with  the  manufacturer  the  advantage  in 
lowered  prices.  When,  however,  such  combinations  not 
only  lower  the  cost  to  themselves,  but  are  able  to  con- 
trol the  market  and  maintain  or  raise  the  old  prices, 
the  public  derives  no  benefit  and  is  helpless  in  the  hands 
of  a  monopoly. 

ANTI-TRUST    LAW 

Fear  of  the  existence  of  such  an  abuse  led  to  the 
passage  of  the  anti-trust  law,  in  1890.  It  recognizes 
two  forms  in  which  this  evil  may  be  maintained.     One  is 


178  THE  LEGISLATIVE  POLICIES  OF 

by  an  agreement  among  a  number  of  different  manu- 
facturers of  an  article  for  the  maintenance  of  the  price 
of  the  article  and  the  suppression  of  competition.  This 
is  denounced  when  the  contract  is  in  restraint  of  inter- 
state trade  as  a  criminal  offense  against  the  United 
States,  punishable  by  fine  and  imprisonment,  and  a  con- 
spiracy which  may  be  restrained  by  injunction  in  a 
civil  suit.  The  other  form  is  denounced,  with  similar 
remedies  against  it,  as  a  monopoly  of  interstate  trade, 
and  covers  the  union  of  the  conspiring  companies  into 
one  company  which,  by  owning  all  the  plant  or  nearly 
all  the  plant,  engaged  in  the  manufacture  of  the  product 
and  by  use  of  other  devices,  controls  the  prices.  The 
Supreme  Court  of  the  United  States  has  not  defined 
what  a  monopoly  under  this  section  of  the  anti-trust 
law  is. 

DEFINITION   OF   UNLAWFUL   MONOPOLY 

I  conceive  that  it  is  not  sufficiently  defined  by  saying 
that  it  is  the  combination  of  a  large  part  of  the  plants 
in  the  country  engaged  in  the  manufacture  of  a  par- 
ticular product  in  one  corporation.  There  must  be 
something  more  than  the  mere  union  of  capital  and 
plant  before  the  law  is  violated.  There  must  be  some 
use  by  the  company  of  the  comparatively  great  size  of 
its  capital  and  plant  and  extent  of  its  output,  either  to 
coerce  persons  to  buy  of  it  rather  than  of  some  com- 
petitor, or  to  coerce  those  who  would  compete  with  it, 
to  give  up  their  business.  There  must,  in  other  words, 
be  an  element  of  duress  in  the  conduct  of  its  business 
toward  the  customers  in  the  trade  and  its  competitors 
before  mere  aggregation  of  plant  becomes  an  unlawful 
monopoly.  It  is  perfectly  conceivable  that  in  the  in- 
terest of  economy  of  production,  a  great  number  of 


THE  PRESENT  ADMINISTRATION         179 

plants  may  be  legitimately  assembled  under  the  owner- 
ship of  one  corporation.  In  such  a  case  it  is  either 
not  a  trust,  if  the  term  involves  unlawfulness,  or  it  is  a 
lawful  trust,  if  a  trust  merely  means  a  company  which 
has  assembled  a  large  part  of  the  manufacturing  plant 
of  any  product.  It  may  be,  as  Mr.  Bryan,  in  his  con- 
troversy with  Senator  Beveridge,  says,  that  there  is  a 
limit  in  the  union  of  capital  and  plant  that  will  effect 
economy,  and  that  after  that  limit  is  reached,  the  in- 
crease of  the  plant  or  the  capital  rather  enlarges  the 
risk  in  the  management  of  the  business,  and  is  likely  to 
increase  the  cost  of  production  rather  than  to  diminish 
it.  If  so,  then,  when  a  corporation  goes  beyond  that 
limit,  there  is  a  reasonable  presumption  that  it  is  do- 
ing so  for  the  purpose  of  monopolizing  trade. 

MERE   AGGREGATION    OF   ALL   PLANTS   IN   ONE   OWNERSHIP 
DOES  NOT   SUPPRESS   COMPETITION 

It  must  be  borne  in  mind  that  in  a  country  like  this, 
where  there  is  an  enormous  floating  capital  awaiting 
investment,  the  time  within  which  competition  by  con- 
struction of  new  plants  can  be  introduced  into  any  busi- 
ness is  comparatively  short,  rarely  exceeding  a  year, 
and  is  usually  even  less  than  that.  Many  enterprises 
have  been  organized  on  the  theory  that  mere  aggrega- 
tion of  all  or  nearly  all  existing  plants  in  a  line  of 
manufacture,  without  regard  to  economy  of  production, 
destroys  competition.  They  have  most  of  them  gone 
into  bankruptcy.  Competition  in  a  profitable  business 
will  not  be  excluded  by  the  mere  aggregation  of  many 
existing  plants  under  one  company,  unless  the  company 
thereby  effects  great  economy  or  takes  some  illegal 
method  to  avoid  competition  and  to  perpetuate  a  hold  on 
the  business. 


180  THE  LEGISLATIVE  POLICIES  OF 

ILLEGAL  DEVICES  BADGES  OF  UNLAWFUL,  TRUSTS 

Frequently  contracts  have  been  made  with  customers 
by  which  they  are  required  to  deal  exclusively  with  the 
Trust,  on  the  threat  that  if  there  is  not  this  exclusive 
dealing,  then  at  a  time  when  they  most  need  the  product, 
it  will  not  be  sold  to  them  at  all,  or  only  at  a  very  high 
price,  and  one  prohibitive  of  profit  on  their  part. 
Again,  the  tremendous  wealth  and  resources  of  the 
Trust  are  exerted  to  destroy  a  rival  in  a  particular  lo- 
cality by  selling  at  a  very  low  price  in  that  neighbor- 
hood and  driving  him  out  of  business,  and  then  raising 
the  prices.  This  can  be  easily  detected  by  the  inequality 
of  the  prices  which  the  Trust  asks  for  the  same  com- 
modity in  different  localities  under  the  same  conditions. 
Such  or  like  methods  bring  the  company  within  the  de- 
scription of  a  monopoly,  at  which  the  anti-trust  law 
is  directed.  I  am  inclined  to  the  opinion  that  the  time 
is  near  at  hand  for  an  amendment  of  the  anti-trust  law 
defining  in  more  detail  the  evils  against  which  it  is 
aimed,  making  clearer  the  distinction  between  lawful 
agreements  reasonably  restraining  trade  and  those 
which  are  pernicious  in  their  effect,  and  particularly 
denouncing  the  various  devices  for  monopolizing  trade 
which  prosecutions  and  investigations  have  shown  to  be 
used  in  actual  practice.  The  decisions  of  the  courts  and 
the  experience  of  executive  and  prosecuting  officers 
make  the  framing  of  such  a  statute  possible.  It  will 
have  the  good  effect  of  making  much  clearer  to  those 
business  men  who  would  obey  the  laws  the  methods  to 
be  avoided. 


THE  PRESENT  ADMINISTRATION         181 

SECRET  REBATES  MOST  EFFECTIVE  TO  MAINTAIN  A 
MONOPOLY 

Another  and  perhaps  the  most  effective  method  in  the 
past  for  an  unlawful  trust  to  maintain  itself  has  been 
to  secure  secret  rebates  or  other  unlawful  advantage 
in  transportation,  by  threat  of  withholding  business 
from  the  carrier.  This  is  undoubtedly  what  has  en- 
abled the  Standard  Oil  Company  and  the  Sugar  Trust, 
and  other  great  combinations,  to  reap  an  illegal  harvest 
and  to  drive  all  competitors  from  the  field.  If  by  assert- 
ing complete  Federal  control  over  the  interstate  rail- 
ways of  the  country,  we  can  suppress  secret  rebates  and 
discriminations  of  other  kinds,  we  shall  have  gone  a 
long  way  in  the  suppression  of  the  unlawful  trusts. 

ANSWER    TO    MR.    BRYAn's    QUESTION:    WHAT    SHOULD    BE 
DONE   TO   TRUSTS?      GOVERNMENT  ACTION 

Mr.  Bryan  asks  me  what  I  would  do  with  the  trusts. 
I  answer  that  I  would  restrain  unlawful  trusts  with  all 
the  efficiency  of  injunctive  process  and  would  punish 
with  all  the  severity  of  criminal  prosecution  every  at- 
tempt on  the  part  of  aggregated  capital  through  the  il- 
legal means  I  have  described  to  suppress  competition. 

There  has  been  great  activity  in  the  Department  of 
Commerce  and  Labor  and  in  the  Department  of  Justice 
in  an  effort  to  investigate  and  restrain  the  continuance 
of  such  unlawful  methods,  and  the  success  which  has 
attended  this  effort  in  the  dissolution  of  a  number  of 
such  trusts  where  they  consisted  of  several  companies 
or  partnerships  united  by  a  contract  in  restraint  of 
trade  has  been  gratifying.  In  the  case  of  those  who 
have  made  themselves  into  one  corporation,  their  re- 
straint is  more  difficult.     It  involves  enormous  labor  on 


182  THE  LEGISLATIVE  POLICIES  OF 

the  part  of  the  Government  to  prosecute  such  a  com- 
bination because  the  proof  of  the  gist  of  the  offense  lies 
underneath  an  almost  limitless  variety  of  transactions. 
In  the  outset,  it  can  be  very  much  more  easily  reached 
by  bill  in  equity  than  in  a  criminal  prosecution  and  the 
questions  of  law  arising  may  be  more  quickly  settled. 
When  the  law  is  declared  so  that  the  corporation  under- 
stands exactly  the  limits  upon  its  action,  and  it  then 
pursues  its  previous  illegal  methods,  nothing  but 
criminal  prosecution  ought  to  be  resorted  to. 

WHY    TRUST    PROMOTERS    HAVE   NOT   BEEN   IMPRISONED 

Mr.  Bryan  is  continually  asking  why  have  some  of  the 
managers  of  unlawful  trusts  not  been  convicted  and 
sent  to  the  penitentiary?  I  sympathize  with  him 
in  his  wish  that  this  may  be  done,  because  I  think 
that  the  imprisonment  of  one  or  two  would  have  a  most 
healthy  effect  throughout  the  country ;  but  even  without 
such  imprisonment  I  believe  that  the  prosecutions  which 
are  now  on  foot  and  the  injunctions  which  have  al- 
ready been  issued,  have  had  a  marked  effect  on  business 
methods.  One  reason  for  the  small  number  of  sentences 
of  imprisonment  in  trust  prosecutions  is  that  the  revela- 
tions of  unlawful  trust  methods  and  dishonesty  have 
been  chiefly  made  known  in  secret  rebates,  and  as  I  have 
already  said,  the  Elkins  act,  until  amended  by  the 
Rate  Bill,  only  prescribed  fines  as  a  mode  of  punish- 
ment in  such  cases. 

JURIES    HESITATE    TO    IMPRISON    BY   THEIR   VERDICTS 

Again,  it  is  difficult  to  induce  juries  to  convict  indi- 
viduals of  a  violation  of  the  anti-trust  law,  if  imprison- 
ment is  to  follow.  In  the  case  of  the  Tobacco  Trust,  the 
Government  declined  to  accept  a  plea  of  guilty  by  the 


THE  PRESENT  ADMINISTRATION         183 

individual  defendants,  offered  on  condition  that  only 
the  penalty  of  a  fine  be  imposed,  and  the  result  was  that 
the  jury  did  not  hesitate  to  stultify  itself  by  finding  the 
corporation  guilty  and  acquitting  the  individual  defend- 
ants, who  had  personally  committed  the  acts  upon  which 
the  conviction  of  the  corporation  was  based.  In  the 
early  enforcement  of  a  statute  which  makes  unlawful, 
because  of  its  evil  tendencies,  that  which  has  been  in 
the  past  regarded  as  legitimate,  juries  are  not  inclined 
by  their  verdicts  to  imprison  individuals.  The  course 
which  the  Government  has  pursued  of  resorting  to  civil 
processes  first,  and  clarifying  the  meaning  of  a  general 
statute  which  needs  definition,  is  probably  the  best  course 
to  pursue.  As  the  criminal  prosecutions  go  on  (and 
many  such  prosecutions  have  now  been  begun),  if  the 
violations  of  the  trust  law  are  continued,  undoubtedly 
some  shining  marks  will  be  hit,  but  the  vigor  with  which 
these  prosecutions  have  been  continued  has  created  an 
anxiety  among  those  engaged  in  doubtful  enterprises 
that  has  either  driven  them  out  of  the  business  or  made 
them  careful  not  to  give  occasion  for  further  com- 
plaint. 

BRYAN'S  "  EXTIRPATION   ROOT  AND   BRANCH  " 

Mr.  Bryan  says :  "  He  would  extirpate  trusts,  root 
and  branch."  If  Mr.  Bryan's  language  is  more  than 
mere  rhetoric  and  he  means  to  seize  the  property,  to 
divide  it  up  and  sell  it  in  pieces,  and  disassemble  the 
parts,  then  I  am  not  in  favor  of  his  method  of  dealing 
with  trusts,  because  I  believe  that  such  large  combina- 
tions legitimately  conducted  greatly  add  to  the  pros- 
perity of  the  country.  The  attitude  of  the  Government 
toward  combinations  of  capital  for  the  reduction  in  the 
cost  of  production  should  be  exactly  the  same  as  toward 


184  THE  LEGISLATIVE  POLICIES  OF 

the  combinations  of  labor  for  the  purpose  of  bettering 
the  conditions  of  the  wage-worker  and  of  increasing  his 
share  of  the  joint  profit  of  capital  and  labor.  They 
are  both  to  be  encouraged  in  every  way  as  long  as  they 
conduct  themselves  within  the  law.  They  both  wield 
enormous  power,  and  if  wielded  for  good,  can  be  of 
inestimable  benefit.  Their  power  for  evil  when  in  the 
control  of  unscrupulous  men  is  such  that,  if  it  is  to  be 
restrained,  it  needs  the  use  of  all  the  means  which  the 
executive  and  the  courts  can  lawfully  command.  I 
think  it  entirely  possible  by  the  rigorous  prosecutions 
of  the  law  against  illegal  combinations  and  by  the  equal 
and  just  operation  of  railways,  to  prevent  a  recurrence 
of  what  we  have  had  in  the  past  and  to  restrain  within 
the  bounds  of  legitimate  and  useful  business,  all  these 
great  corporations. 

FEDERAL,  LICENSE  OF  ALL  INTERSTATE  BUSINESS 
CORPORATIONS 

Mr.  Bryan's  method  of  suppressing  unlawful  trusts 
would  be  to  require  every  person,  partnership  or  cor- 
poration, engaged  in  interstate  traffic,  to  take  out  a 
Federal  license,  and  by  withholding  such  licenses  from 
illegal  trusts,  he  would  make  them  impossible.  It  is 
probable  that  a  statute  embodying  this  plan,  could  be 
drawn  which  would  stand  the  test  of  the  Constitution. 
It  would,  however,  have  to  contain  some  provision  for 
ultimate  judicial  determination  of  those  applicants  for 
license  who  were  violating  the  anti-trust  law  and  thus 
involve  the  same  litigation  we  now  have.  There  is  dan- 
ger that  its  effect  would  be  so  to  clog  the  channels  of 
legitimate  interstate  trade  that  after  it  had  been  tried 
for  a  short  time,  the  people  of  the  country  would  re- 
gard it  as  burdensome  and  demand  its  repeal.     It  is 


THE  PRESENT  ADMINISTRATION         185 

important  that,  in  new  legislation  to  stamp  out  evils, 
we  should  not  so  annoy  the  law-abiding  in  the  com- 
munity as  to  lose  their  sympathy  in  the  reform.  This 
plan  has  had  the  approval  of  Mr.  Garfield  and  others. 
I  was  at  first  inclined  to  think  that  this  was  a  practical 
method,  but  fuller  consideration,  for  the  reasons  given, 
makes  me  doubt.  The  decision  of  the  Supreme  Court 
that  a  corporation  can  not  refuse  to  disclose  facts  which 
will  criminate  itself,  makes  less  important  the  advantage 
which  the  license  system  was  supposed  to  furnish  in 
keeping  the  business  of  a  corporation  under  observa- 
tion. Until  it  is  clearer  than  at  present  that  the  evils 
of  unlawful  combinations  can  not  be  suppressed  with- 
out it,  it  seems  to  me  such  a  plan  ought  not  to  be 
tried. 

EVIL  OF  SWOLLEN  FORTUNES 

One  of  the  results  of  the  conditions  and  evils  which  I 
have  been  describing  has  been  the  concentration  of 
enormous  wealth  in  the  hands  of  a  few  men.  I  do  not 
mean  to  say  that  all  the  large  fortunes  are  to  be  traced 
to  unlawful  means  but  it  is  quite  clear  that  many  of 
those  described  as  swollen  are  due  to  rebates,  or  to  some 
form  of  unlawful  monopoly,  or  to  over-capitalization. 
Of  course,  great  enterprises  organized  and  managed  hj 
men  of  transcendent  ability  should  result  in  great  profit 
to  them.  It  is  proper  compensation  when  they  share 
with  the  people  the  profit  from  the  economies  that  they 
introduce  in  the  business  by  reducing  the  price.  The 
captains  of  legitimate  industry,  therefore,  are  entitled 
to  large  reward,  and  it  is  impossible  to  impose  a  fixed 
limitation  upon  the  amount  which  they  may  accumulate. 


186  THE  LEGISLATIVE  POLICIES  OF 

LEGISLATION,   NOT    CONFISCATORY,   HAVING  TENDENCY  TO 

DIVIDE  SUCH  FORTUNES  AND  TO  DISCOURAGE 

THEIR  ACCUMULATION   NOT   SOCIALISTIC 

On  the  other  hand,  it  is  not  safe  for  the  body  politic 
that  the  power  arising  from  the  management  of  enor- 
mous or  swollen  fortunes  should  be  continued  from  gen- 
eration to  generation  in  the  hands  of  a  few,  and  efforts 
by  laws,  which  are  not  confiscatory,  to  divide  these 
fortunes  and  to  reduce  the  motive  for  accumulating 
them  are  proper  and  statesmanlike  and  without  the 
slightest  savor  of  socialism  or  anarchy.  The  law  of 
primogeniture  was  abolished  in  states  where  it  had  been 
adopted,  merely  for  the  purpose  of  securing  a  division 
of  the  land  among  the  children  of  the  man  who  owned 
the  land.  Many  of  the  provisions  of  our  public  land 
laws  are  drawn  to  discourage  the  union  of  large  tracts 
in  one  ownership,  and  to  encourage  small  holdings. 

BEST  REMEDY  TO  BE  FOUND  IN  STATE  LEGISLATION 

The  State  legislatures  have  complete  control  of  what 
shall  be  done  with  a  man's  property  on  his  death.  He 
has  no  right  to  leave  it  by  will  and  his  children  or 
heirs  have  no  right  to  receive  it  which  the  legislatures 
may  not  modify  or  take  away.  The  States,  therefore, 
can  best  remedy  the  dangers  of  too  great  accumulation 
of  wealth  in  one  hand  by  controlling  the  descent  and 
devolution  of  property  and  they  ought  to  do  so.  They 
can  adopt  the  French  method,  which  requires  the  di- 
vision of  a  large  part  of  a  man's  fortune  between  all 
his  children  and  gives  him  absolute  power  with  respect  to 
only  a  fraction.  This  would  secure  a  division  in  the 
second  generation  and  a  probable  change  for  the  bet- 
ter in  respect  to  such  fortunes.     Many  of  the  States 


THE  PRESENT  ADMINISTRATION         187 

have  already  and  properly  adopted  a  graduated  in- 
heritance tax  which  not  only  reduces  the  great  fortune 
but  lessens  the  motive  for  its  accumulation. 

FEDERAL  GOVERNMENT  MAY  PROPERLY  LEND  ITS  AID 

FAVORS  GRADUATED  INHERITANCE  TAX 

Federal  action  for  a  Federal  end  may  legitimately 
have  an  indirect  effect  to  aid  the  States  in  reforms  pecu- 
liarly within  their  cognizance.  When,  therefore,  the 
Government  revenues  need  addition,  or  readjustment,  I 
believe  a  Federal  graduated  inheritance  tax  to  be  a 
useful  means  of  raising  government  funds.  It  is  easily 
and  certainly  collected.  The  incidence  of  taxation  is 
heaviest  on  those  best  able  to  stand  it,  and  indirectly, 
while  not  placing  undue  restriction  on  individual  effort, 
it  would  moderate  the  enthusiasm  for  the  amassing  of 
immense  fortunes. 

INCOME    TAX 

A  graduated  income  tax  would  also  have  a  tendency 
to  reduce  the  motive  for  the  accumulations  of  enormous 
wealth,  but  the  Supreme  Court  has  held  an  income  tax 
not  to  be  a  valid  exercise  of  power  by  the  Federal  Gov- 
ernment. The  objection  to  it  from  a  practical  stand- 
point is  its  inquisitorial  character  and  the  premium  it 
puts  on  perjury.  In  times  of  great  national  need,  how- 
ever, an  income  tax  would  be  of  great  assistance  in  fur- 
nishing means  to  carry  on  the  government,  and  it  is  not 
free  from  doubt  how  the  Supreme  Court,  with  changed 
membership,  would  view  a  new  income  tax  law  under  such 
conditions.  The  Court  was  nearly  evenly  divided  in 
the  last  case,  and  during  the  Civil  War  great  sums  were 
collected  by  an  income  tax  without  judicial  interference 
and,  as  it  was  then  supposed,  within  the  Federal  power. 


188  THE  LEGISLATIVE  POLICIES  OF 

DOES   NOT    FAVOR   IMMEDIATELY   SUCH    FEDERAL   LEGISLA- 
TION  BUT  ON  NEXT  READJUSTMENT  OF 
REVENUES 

I  do  not  favor  Federal  legislation  now  to  reduce  such 
fortunes  either  by  a  constitutional  amendment  to  per- 
mit an  income  tax  or  by  a  graduated  inheritance  tax, 
but  whenever  the  Government  revenues  need  an  increase 
or  readjustment,  I  should  strongly  favor  the  imposition 
of  a  graduated  inheritance  tax  and,  if  necessary  for 
the  revenues,  a  change  in  the  constitution  authorizing 
a  Federal  income  tax,  with  all  the  incidental  influence  of 
both  measures  to  lessen  the  motive  for  accumulation. 

The  suppression  of  monopolies  and  the  abolition  of 
secret  rebates  and  discriminating  privileges  by  the  rail- 
roads, will  lessen  the  possibility  of  such  enormous  ac- 
cumulations as  those  which  have  already  taken  place. 
The  evils  of  too  great  concentration  of  money  or  of 
any  kind  of  property  in  a  few  hands  are  to  be  best 
remedied  by  the  gradual  effect  of  a  long  course  of 
legislation  and  not  by  measures,  having  an  immediate 
and  radical  effect,  that  are  apt  to  involve  injurious 
consequences  to  the  general  business  community. 

AFTER    A    REVIEW    OF    PRESIDENT    ROOSEVELT'S    POLICIES, 
CONCURS   IN   THEM 

I  have  thus  reviewed  at  great  length  what  have 
properly  come  to  be  known  as  President  Roosevelt's 
policies  and  have  discussed  them  with  what  I  hope  you 
will  think  is  entire  candor.  I  have  attempted  to  point 
out  one  or  two  instances  in  which  I  would  qualify  details 
of  future  policies  which  he  has  sketched,  but  with  these 
minor  exceptions  as  to  method,  I  am  glad  to  express  my 
complete,  thorough,   and   sincere  sympathy  with,   and 


THE  PRESENT  ADMINISTRATION         189 

admiration  for,  the  great  conserving  and  conservative 
movement  which  he  has  with  wonderful  success  initiated 
and  carried  so  far  against  bitter  opposition,  to  remedy 
the  evils  of  our  prosperity  and  preserve  to  us  the  insti- 
tutions we  have  inherited  from  our  fathers. 

CRITICISM   THAT    MR.    ROOSEVELT^    POLICIES   ARE   SOCIAL- 
ISTIC   ABSURD 

Critics  of  President  Roosevelt  denounce  his  policies 
as  socialistic  and  likely  to  impair  the  institution  of  pri- 
vate property.  The  institution  of  private  property  next 
to  that  of  civil  liberty  is  the  most  important  factor  in 
all  that  is  good  in  modern  society.  It  is  indispensable 
to  individualism  and  is  one  of  the  two  chief  means  by 
which  man  raised  himself  from  a  low  estate  near  to 
that  of  the  beasts  of  the  field  to  his  present  condition. 
But  if  the  people  are  not  convinced  that  it  is  possible 
to  eradicate  the  evils  and  abuses  arising  from  the  un- 
scrupulous use  of  wealth  and  corporate  combination 
under  the  system  of  private  property,  the  movement  to- 
ward its  abolition  and  the  adoption  of  socialism  in  some 
form  will  gain  great  strength.  President  Roosevelt 
would  stop  this  movement  by  a  demonstration  that  it 
is  possible  under  the  system  of  private  property,  by 
efficient  Government  regulation,  supervision  and  prose- 
cution, to  stamp  out  the  evils  which  have  created  our 
social  unrest.  He  knows  what  a  futile  remedy  social- 
ism will  prove  to  be.  Socialism  looks  to  a  dead  level 
of  life,  to  an  absence  of  all  motive  for  material  prog- 
ress, to  a  stagnation  in  everything.  It  involves  a  lack 
of  individual  freedom  and  requires  an  official  tyranny 
to  carry  out  its  system  that  finds  no  counterpart  in 
modern  Government.  It  offers  no  real  remedy  for  the 
evils  that  appear  from  time  to  time  as  the  accompani- 


190  THE  LEGISLATIVE  POLICIES  OF 

ment  of  our  progress.  And  yet,  President  Roosevelt 
knows  and  everyone  must  realize,  the  plausible  force 
with  which  socialistic  doctrines  can  be  pressed  upon  a 
discontented  people  who  see  real  wrongs  in  the  body 
politic  and  social. 

POLICIES  FRAMED  TO  DEFEAT  SOCIALISM 

For  this  reason,  he  takes  the  most  conservative 
course  in  insisting  on  adopting  measures  entirely  con- 
sistent with  the  principle  of  private  property  in  order  to 
stamp  out  the  evils  which  have  attended  its  abuse. 
There  is  nothing  either  radical  or  severe  in  the  reforms 
he  proposes.  What  is  there  in  the  tenet  of  private 
property  that  prevents  close  government  regulation  of 
the  exercise  of  a  public  franchise  like  that  of  inter- 
state railways,  or  the  enactment  of  criminal  laws  or 
civil  procedure  to  restrain  the  evils  which  result  from 
the  improper  use  of  the  right  of  property  in  combina- 
tions of  capital  to  suppress  competition  and  to  monopo- 
lize trade,  or  the  adjustment  of  tax  laws  or  laws  of 
descent  in  such  a  way  as  to  reduce  the  motive  for 
accumulating  fortunes  so  great  that  the  power  they 
give  their  individual  owners  is  politically  dangerous? 

THE  RAILROADS NOT  MR.  ROOSEVELT RESPONSIBLE  FOR 

RESTRICTIVE    STATE    LEGISLATION 

The  critics  I  have  referred  to  are  in  the  habit  of 
charging  to  Mr.  Roosevelt  responsibility  for  all  the 
recent  State  legislation  looking  to  the  restraint  of  cor- 
porations and  especially  for  that  which  cuts  down  the 
passenger  rates  on  State  railways.  This  is  most  unjust, 
for  whether  such  legislation  is  proper  or  oppressive,  the 
impetus  that  carried  it  into  law  was  given  not  by 
Mr.   Roosevelt  but  by  the  evils  that  he  has  been  at- 


THE  PRESENT  ADMINISTRATION         191 

tempting  to  remedy  within  the  Federal  jurisdiction.  If 
the  State  measures  are  unjust  to  the  property  rights 
of  the  railways,  they  may  be  corrected  in  the  courts.  If 
they  are  unwise,  they  will  react  against  the  communi- 
ties in  which  they  operate  by  making  the  service  poorer 
and  in  other  ways,  and  the  reaction  will  lead  to  their 
repeal.  The  railways  can  blame  no  one  but  themselves 
if  the  revelation  of  their  flagrant  violations  of  law  and 
of  their  unjust  administration  of  a  public  trust  have 
led  to  an  outburst  of  popular  indignation  and  have 
brought  on  temporary  excess. 

SLUMP  IN  WALL  STREET  PRICES  NOT  DUE  TO  PRESIDENT^ 

POLICY 

Again,  every  time  that  there  is  a  fall  in  the  prices 
of  stocks  in  Wall  Street,  those  who  are  injuriously  af- 
fected condemn  the  President  with  great  bitterness  as 
responsible  for  their  losses.  Just  at  present  there  has 
been  a  very  serious  depression  in  the  values  of  market- 
able securities,  and  it  is  said  that  the  President's  atti- 
tude toward  corporations  has  been  the  cause  of  this. 
Such  critics  fail  to  observe  that  there  has  been  a  similar 
decrease  in  the  marketable  value — not  only  of  railway 
stocks  but  of  Government  consols  abroad,  and  that  there 
is  a  stringency  in  the  markets  of  the  world.  But  more 
than  this,  if  the  prosecution  of  dishonesty  and  illegal 
practices,  like  the  giving  and  taking  of  rebates  and  the 
destruction  of  competition  by  monopoly,  is  to  injure  the 
market  for  stocks  on  the  stock  exchange,  then  this  is  a 
burden  that  must  be  borne  and  must  be  charged — not  to 
the  head  of  the  nation,  whose  duty  it  is  to  enforce  the 
law,  but  to  the  violators  of  the  law  whose  pursuit  of 
criminal  methods  has  been  so  successful  and  far-reach- 
ing as  to  make  their  prosecution  a  serious  threat  against 


192  THE  LEGISLATIVE  POLICIES  OF 

the  stability  of  the  market.  It  is  not  true  that  the 
President  is  engaged  in  a  raid  against  all  corporations. 
It  is  not  true  that  he  proposes  to  rip  up  past  transac- 
tions, when  by  reason  of  the  injury  to  innocent  pur- 
chasers such  a  course  would  do  more  injustice  than 
good.  His  only  policy  and  sworn  duty  is  to  prosecute, 
with  the  fullest  vigor,  the  corporations  and  individuals 
whose  flagrant  violations  of  the  laws  make  it  necessary 
to  do  so,  in  order  that  complete  reform  may  be  effected 
in  our  business  methods  with  respect  to  the  evils  which 
I  have  described. 

radical,  differences  between  mr.  roosevelt's  and 
mr.  bryan's  theories  of  government 

These  same  critics  like  to  say  that  Mr.  Roosevelt  has 
"  out-Bryaned "  Mr.  Bryan  in  his  policies  and  Mr. 
Bryan  has  lent  color  to  this  saying  by  the  claim  that  he 
was  their  original  inventor.  No  one  who  has  given  the 
slightest  attention  to  the  attitude  of  Mr.  Roosevelt  and 
Mr.  Bryan  upon  the  social  and  political  questions  of 
the  day  can  for  a  moment  miss  the  radical  difference 
between  the  two. 

mr.  roosevelt's  trust  in  both  people  and 
individuals 

Mr.  Roosevelt  believes  not  only  in  the  people  but  also 
in  the  individual  as  the  unit  who,  multiplied,  makes 
up  and  gives  quality  to  the  people.  He  thinks  that  there 
is  no  royal  road  to  the  elevation  of  a  people  but  by 
the  improvement  in  the  intelligence  and  moral  character 
of  the  individual.  He  believes  in  the  possibility  of  the 
individual's  being  honest,  courageous  and  just  and  able 
to  resist  the  influence  of  "  the  money  power  "  to  wean 
him  from  the  path  of  duty.     He  believes  that  the  people 


THE  PRESENT  ADMINISTRATION         193 

can  select  individuals  who  may  be  trusted,  as  public 
officers — executive,  legislative  and  judicial — to  wield, 
without  abuse  and  in  the  interest  of  the  people,  the 
powers  needed  to  conduct  an  efficient  government.  He 
has  faith  in  the  maintenance  of  an  honest,  courageous 
and  efficient  representative  popular  legislature  that 
will  give  the  rich  and  poor  equal  protection  and  oppor- 
tunity before  the  law. 

mr.  roosevelt's  belief  in  strong  and  efficient 
government 

Mr.  Roosevelt  believes  in  the  necessity  for  a  strong 
government  that  can  and  will  make  both  rich  and  poor 
obey  the  law,  and  he  would  have  the  officers  charged  with 
its  maintenance  render  due  account  of  their  steward- 
ship to  their  masters,  the  people.  Mr.  Roosevelt  knows 
no  favorite  in  matters  of  lawlessness,  be  he  rich  or  poor, 
corporation  president  or  member  of  a  labor  union. 
The  courts  must  be  strong  enough  to  restrain  them  all. 
Mr.  Roosevelt  believes  our  present  government  the  best 
one  possible  for  us  and  in  every  way  adapted  to  the 
genius  of  our  people.  He  has  the  utmost  confidence  in 
the  capacity  of  the  people  through  their  representatives, 
and  by  the  means  provided  in  the  Constitution  by  our 
fathers,  to  remedy  the  evils  that  arise  in  our  material 
progress. 

mr.  bryan's  theories  based  on  distrust  of  individual 
and  failure  of  representative  government 

Mr.  Bryan's  whole  system  of  remedies,  on  the  other 
hand,  for  the  evils  that  both  Mr.  Roosevelt  and  he 
and  many  others  recognize,  is  based  on  his  distrust  of 
the  honesty,  courage  and  impartiality  of  the  individual 
as  an  agent  on  behalf  of  the  people  to  carry  on  any  part 


194  THE  LEGISLATIVE  POLICIES  OF 

of  government,  and  rests  on  the  proposition  that  our 
present  system  of  representative  government  is  a  fail- 
ure. He  would  have  government  ownership  of  railways 
because  he  does  not  believe  it  is  possible  to  secure  an 
interstate  commerce  commission  that  the  "  money 
power  "  can  not  and  will  not  ultimately  own.  He  would 
have  the  initiative  and  referendum  because  he  distrusts 
representative  government  and  has  no  confidence  in  the 
ability  of  the  people  to  find  men  who  will  conscientiously, 
and  free  from  the  influence  of  "  the  money  power,"  rep- 
resent them  in  preparing  and  voting  legislation.  Be- 
cause he  distrusts  the  ability  of  judges  to  resist  the 
malign  influence  of  the  "  money  power,"  he  would  take 
away  from  courts  the  power  to  enforce  their  own 
orders  until  a  jury  is  called  to  tell  the  court  whether 
the  order  has  been  disobeyed,  and  thus,  in  practice, 
though  not  in  theory,  the  jury  would  come  to  pass  on 
the  correctness  and  justice  of  the  court's  order. 

MR.    BRYAN   SEEKS    JUDICIAL   PROCEDURE   THAT   WILL   RE- 
STRAIN   WEALTHY    WRONGDOER    BUT    WILL    GIVE 

FREEDOM   OF   ACTION   TO   LAWLESS   POOR 

INSTANCE    OKLAHOMA    CONSTITUTION 

Mr.  Bryan  seems  to  be  seeking  some  system  of  ad- 
ministering law  under  which  the  rich  wrongdoer  shall 
be  certainly  restrained,  while  the  lawless  poor  shall 
escape.  He  would  have  his  judicial  machinery  ad- 
justed to  restrict  the  violations  of  law  by  a  corporation 
but  would  give  freedom  of  action  to  the  lawless  members 
of  a  labor  union.  Indeed  in  the  constitution  of  Okla- 
homa, which  he  says  is  the  greatest  constitution  ever 
written,  this  anomaly  prevails.  No  one  can  be  pun- 
ished for  violating  an  order  of  injunction  or  restraint 


THE  PRESENT  ADMINISTRATION         195 

except  after  a  verdict  of  a  jury  deciding  that  the  vio- 
lation was  committed,  and  yet  in  the  same  constitution, 
a  corporation  commission  of  an  executive  and  adminis- 
trative character,  a  body  of  laymen,  authorized  to 
make  orders  against  railroads  and  other  corporations 
is  empowered,  if  its  orders  are  not  obeyed,  to  change 
itself  into  a  court  and  after  giving  due  process  of  law 
by  a  hearing  to  enforce  its  own  orders  by  a  fine  of  $500 
a  day  until  the  order  is  performed. 

SUCH     DISCRIMINATION     IMPOSSIBLE OFFERS     IMMUNITY 

TO    RICH 

Such  a  discrimination  in  practical  legislation  can  not 
be  maintained  for  a  moment.  Courts  and  judicial  pro- 
cedure are  made  for  all  and  must  operate  equally  for 
and  against  all.  The  only  method  by  which  wealthy 
and  powerful  malefactors  can  be  restrained  is  by  main- 
taining the  power  of  the  courts,  and  the  minute  the 
power  of  the  court  is  weakened  in  the  supposed  interest 
of  the  lowly  and  unfortunate  accused  of  wrongdoing, 
the  lawless  rich  are  furnished  the  immunity  they  seek. 
The  wealthy  wrongdoers  could  easily  escape  the  re- 
straint of  the  law  through  the  rents  in  its  meshes  Mr. 
Bryan  would  make  for  the  benefit  of  those  with  less 
influence  and  means. 

mr.  bryan's  a  weak  and  nerveless  government 

In  all  his  proposed  reforms,  Mr.  Bryan  seems  to  give 
little  attention  to  securing  efficiency  and  force  in  gov- 
ernment so  that  the  evils  he  recognizes  may  be  sup- 
pressed. The  government  which  his  system  of  remedies 
would  tend  to  produce  would  be  nerveless.  Estopped 
by  his  own  expressed  fear  of  power  put  in  the  hands  of 


196  THE  LEGISLATIVE  POLICIES  OF 

any  individual,  he  would  find  difficulty  in  wielding  it 
when  most  needed. 

ABSURDITY    OF    NATIONAL    REFERENDUM 

The  representative  government  that  has  served  us 
well  for  130  years  has  not  been  for  Mr.  Bryan  suffi- 
ciently expressive  of  the  will  of  the  people.  Election 
of  Senators  by  the  people  is  not  enough  for  him.  We 
must  call  upon  fourteen  million  electors  to  legislate 
directly.  Could  any  more  burdensome  or  inefficient 
method  be  devised  than  this?  I  believe  that  a  referen- 
dum under  certain  conditions  and  limitations  in  the  sub- 
divisions of  a  State  on  certain  issues  may  be  healthful 
and  useful,  but  as  applied  to  our  national  government 
it  is  entirely  impracticable.  If  it  is  difficult  for  the 
people  to  use  proper  judgment  in  the  concrete  question 
of  the  personality  of  the  representatives  they  are  to 
select  to  carry  on  their  national  government,  as  Mr. 
Bryan's  theory  assumes,  how  much  more  difficult  for 
them  to  give  sufficient  attention  to  the  settlement  of  the 
many  questions  of  policy  and  procedure  in  complicated 
statutes  which  the  people  have  always  been  willing  to 
leave  to  the  decision  of  their  representatives,  skilled  in 
the  science  of  legislation,  whose  general  views  on  the 
main  political  issues  of  the  day  are  well  understood. 
Think  of  the  possibility  of  securing  a  vote  of  fourteen 
millions  of  electors  on  the  4,000  items  of  a  tariff  bill. 
The  opportunity  to  retire  a  representative  who  fails  to 
be  truly  representative  is  all  that  the  people  wish  and 
need  to  enforce  their  will. 

Certainly  it  is  difficult  for  an  impartial  observer  to 
find  anything  in  the  actual  government  of  Mr.  Roose- 
velt that  harmonizes  with  that  which  would  be  the  gov- 
ernment under  Mr.  Bryan  if  he  could  carry  out  his 


THE  PRESENT  ADMINISTRATION         197 

theories.  Mr.  Roosevelt  is  doing  everything  in  his 
power  to  avoid  the  condition  which  Mr.  Bryan's  theories 
when  put  in  practice  would  bring  about. 

THE    PROTECTIVE    TARIFF ITS    REVISION ITS    RELATION 

TO    TRUSTS 

I  come  now  to  the  question  of  the  tariff,  its  revision, 
and  its  relation  to  the  unlawful  trusts.  The  Dingley 
tariff  was  adopted  immediately  after  the  election  of  Mr. 
McKinley.  Since  that  time  we  have  passed  through 
the  Spanish  war  and  have  had  a  decade  of  prosperity 
and  an  increase  and  expansion  of  trade  unexampled  in 
the  history  of  this  or  any  other  country.  The  Repub- 
lican principle  of  the  protective  tariff  is,  as  I  under- 
stand it,  that  through  the  customs  revenue  law  a  tariff 
should  be  collected  on  all  imported  products  that  com- 
pete with  American  products,  which  will  at  least  equal  a 
difference  in  the  cost  of  production  in  this  country  and 
abroad,  and  that  proper  allowance  should  be  made  in 
this  difference  for  the  reasonable  profits  to  the  American 
manufacturer.  The  claim  of  Protectionists,  and  it  has 
been  abundantly  justified  in  the  past,  is  that  protection 
secures  a  high  rate  of  wages  and  that  the  encourage- 
ment it  gives  to  the  home  industry  operating  under  the 
influence  of  an  energetic  competition  between  Ameri- 
can manufacturers,  induces  such  improvement  in  the 
methods  of  manufacture  and  such  economies  as  to  re- 
duce greatly  the  price  for  the  benefit  of  the  American 
public  and  makes  it  possible  to  reduce  the  tariff  without 
depriving  the  manufacturer  of  needed  protection  and 
a  good  profit. 


198  THE  LEGISLATIVE  POLICIES  OF 

BUSINESS    SYSTEM    RESTS    ON    PROTECTIVE    TARIFF FREE 

TRADE   REVISION  DISASTROUS 

The  present  business  system  of  the  country  rests  on 
the  protective  tariff  and  any  attempt  to  change  it  to 
a  free  trade  basis  will  certainly  lead  only  to  disaster. 

DUTY  OF  REPUBLICAN  PARTY  TO  PREVENT  EXCESSIVE 
TARIFF  RATES 

It  is  the  duty  of  the  Republican  party,  however,  to 
see  to  it  that  the  tariff  on  imported  articles  does  not 
exceed  substantially  the  reasonably  permanent  differ- 
ential between  the  cost  of  production  in  the  foreign 
countries  and  that  in  the  United  States,  and  therefore 
when  changes  take  place  in  the  conditions  of  produc- 
tion likely  to  produce  a  very  large  reduction  in  the  cost 
of  production  in  the  United  States,  it  is  time  that 
schedules  be  re-examined  and  if  excessive  that  they  be 
reduced  so  as  to  bring  them  within  the  justification  for 
the  rule,  by  which  the  amount  of  tariff  to  be  imposed 
under  the  protective  system  is  properly  determined. 

TEMPTATIONS    TO    MONOPOLY    IN    RATES    EXCEEDING    PRO- 
TECTIVE   PRINCIPLE 

Whenever  the  tariff  imposed  is  largely  in  excess  of 
the  differential  between  the  cost  of  production  in  the 
two  countries,  then  there  is  formed  at  once  a  great 
temptation  to  monopolize  the  business  of  producing  the 
particular  product,  and  to  take  advantage  of  profit  in 
the  excessive  tariff.  This  denies  to  the  people  alto- 
gether the  economies  of  production  that  competition 
under  a  protective  tariff  should  develop. 


THE  PRESENT  ADMINISTRATION         199 


REASON   FOR  THINKING  SOME  SCHEDULES  EXCESSIVE 

In  the  enormous  progress  in  the  manufacturing 
plants  and  the  improvement  in  methods  which  have  been 
brought  about  in  the  last  ten  years  in  this  country, 
there  is  the  strongest  reason  for  thinking  that  in  many 
industries  the  difference  between  the  cost  of  production 
in  this  country  and  abroad  has  been  reduced.  This  is 
an  opinion  of  mine  formed  a  priori  because  I  am  a  sin- 
cere believer  in  the  efficacy  of  the  protective  system 
ultimately  to  cheapen  the  cost  of  production.  The 
opinion  has  been  confirmed  by  conversation  with  manu- 
facturers and  others  who  knew  something  of  what  they 
speak. 

CONFIRMATION  BY  ACTION  OF   NATIONAL,  ASSOCIATION  OF 
MANUFACTURERS 

I  am  not  myself  a  tariff  expert  and  am  not  suffi- 
ciently familiar  with  the  cost  of  production  of  the 
various  articles  covered  in  the  many  schedules  to  point 
out  the  particular  ones  in  which  such  a  change  has  taken 
place ;  but  my  general  conclusion  formed  as  above  finds 
striking  support  in  the  action  of  the  National  Associa- 
tion of  Manufacturers  of  the  United  States  upon  this 
very  question.  A  committee  appointed  by  that  body 
for  the  purpose,  investigated  the  question  whether  the 
tariff  had  not  in  respect  to  many  articles  by  a  change 
in  conditions  become  excessive. 

ASSOCIATION    ALL    PROTECTIONISTS 

This  National  Association  of  Manufacturers  is  com- 
posed almost  wholly  of  protectionists,  and  I  think  we 
may  safely  say,  therefore,  of  Republicans.  I  am  ad- 
vised that  the  Association  represents  all  classes  of  man- 


200  THE  LEGISLATIVE  POLICIES  OF 

ufacturers  in  this  country  and  that  a  majority  of  the 
manufacturers  of  consequence  are  members.  The  com- 
mittee reports :  "  We  are  all  Protectionists — there  are 
a  very  few  brilliant  exceptions,  but  so  few  that  we  may 
repeat  the  statement,  '  We  are  Protectionists.'  "  The 
committee  lays  down  in  its  report  the  following  doctrine, 
which  seems  to  me  of  the  orthodox  Republican  type: 

"  Protection,  as  the  word  implies,  requires  that  the 
Tariff  Schedules  be  such  as  protect  our  manufacturers 
against  undue  pressure  from  foreign  competition,  and 
maintain  our  high  wage  scale  and  standard  of  living. 
The  minimum  measure  of  protection  is,  therefore,  as 
President  Roosevelt  said,  '  The  difference  in  the  cost  of 
production  in  this  country  and  abroad/  These  Pro- 
tective Schedules,  thus  figured,  must  carry  with  them  a 
very  ample  margin  for  safety.  It  must  make  full  al- 
lowance for  the  possibility  of  hard  times  abroad  and 
good  times  here ;  for  dumping,  and  all  other  contingen- 
cies. This  done,  it  is  truly  protective;  and  it  is  only 
so,  as  it  covers  these  features  and  nothing  more." 

MANY   SCHEDULES  EXCESSIVE 

After  referring  to  the  fact  that  there  were  some 
articles  in  which  the  tariff  was  hardly  high  enough,  the 
conclusion  of  the  committee  was  stated  as  follows: 

"  Confining  ourselves  to  the  protective  principle,  we 
find  many  schedules — some  of  them  upon  the  prime 
necessities  of  life — returning  the  Government  no  revenue 
of  consequence,  and  yet  under  the  claims  of  the  pro- 
tective theory,  bearing  a  tariff  schedule — not  merely 
equal  to  the  difference  in  the  cost  of  production  here 
and  abroad,  with  all  reasonable  contingencies  allowed 
for — but  decidedly  in  excess  of  the  total  wage  cost  of 
production  in  this  country. 


THE  PRESENT  ADMINISTRATION         201 

"  We  find  some  of  these  schedules  many  times  in  excess 
of  the  difference  between  the  cost  of  production  here 
and  abroad.  We  find  that  individuals  who  are  at  the 
top,  both  in  stock  holdings  and  in  management  in  some 
of  these  same  industries,  declare  privately  that  these 
schedules  are  wrong,  and  that  the  best  interest  of  those 
industries  themselves,  as  wrell  as  the  interests  of  the 
country  at  large,  require  adjustment  at  the  earliest 
possible  moment.  They  say  that  now  is  the  time  for 
revision,  while  the  country  is  so  prosperous  that  adjust- 
ment may  easily  be  made  to  new  conditions." 

VOTE    OF    ASSOCIATION 

In  that  body  of  members  of  1,800 — 350,  or  20  per 
cent.,  were  radically  opposed  to  revision ;  8  per  cent. 
were  opposed  to  revision  at  this  time  lest  it  unsettle 
business ;  55  per  cent,  wished  revision ;  and  17  per  cent. 
were  indifferent  or  uninformed.  Taken  by  industries, 
out  of  77  different  industries  tabulated,  56  voted  for 
revision,  casting  a  total  of  1,510  votes;  16  industries 
voted  against  revision,  casting  a  total  of  102  votes;  5 
industries  were  each  tied  in  their  votes,  casting  a  total 
of  28  votes. 

The  Association  then  by  resolutions  passed  by  a  large 
majority  declared  itself  in  favor  of  a  revision  of  the 
tariff  at  the  earliest  practicable  date. 

SIGNIFICANCE  OF  THIS  REPORT  AND  ACTION  SHOULD  BRING 
MATTER    BEFORE    CONGRESS    FOR   INVESTIGATION 

I  have  not  cited  the  report  or  action  of  the  National 
Association  of  Manufacturers  as  conclusive  upon  the 
character  of  the  present  schedules,  nor  do  I  assume  that 
the  manufacturers  of  the  country  embrace  all  the  classes 
who  are  interested  in  maintaining  the  protective  system, 


202  THE  LEGISLATIVE  POLICIES  OF 

for  I  fully  recognize  that  other  classes,  especially  the 
farmers,  are  vitally  concerned  in  some  of  the  schedules. 
All  that  I  maintain  is  that  when  after  a  tariff  law  has 
been  in  force  ten  years  and  a  representative  body  of 
protectionists  in  principle  and  in  interest,  whose  busi- 
ness makes  them  familiar  with  the  facts  and  who  have 
no  motive  for  misrepresentation,  adopt  such  a  report 
as  the  one  I  have  quoted  from,  it  makes  a  case  for  inves- 
tigation into  the  existing  tariff  by  Congress  for  the 
purpose  of  determining  how  much  revision  is  needed. 

SCHEDULES    FOR    COMMITTEES    AND    CONGRESS, 

The  investigation  in  the  end  will  be  conducted  by  the 
Committee  of  Ways  and  Means  of  the  House  of  Repre- 
sentatives and  by  the  Finance  Committee  of  the  Senate. 
The  schedules  are  for  them  to  recommend  and  for  Con- 
gress to  fix  after  they  hear  evidence  of  the  cost  of  pro- 
duction in  this  country  and  the  cost  of  production 
abroad,  and  the  conditions  existing  in  each  trade,  and 
if  it  shall  turn  out  that  popular  opinion  founded  on 
such  substantial  evidence  as  that  which  I  have  cited 
here  should  prove  to  be  unfounded,  then  the  revision  of 
the  tariff  will  be  confined  to  minor  inequalities.  But  if 
the  result  of  the  investigation  justifies  the  report  of  the 
National  Association  of  Manufacturers,  then  the  revi- 
sion of  the  excessive  schedules  should  be  substantial,  and 
the  motive  for  the  organization  and  maintenance  of  un- 
lawful trusts  to  monopolize  the  manufacture  and  sale 
of  articles  in  such  schedules  will  be  taken  away. 

PROSPERITY    ARGUMENT    AGAINST    REVISION 

Objection  is  made  to  revision  on  the  ground  that  we 
are  enjoying  business  prosperity,  that  this  will  be  dis- 
turbed by  a  proposal  to  change  the  tariff,  and  that  we 


THE  PRESENT  ADMINISTRATION         203 

should  wait  until  hard  times  before  we  revise.  I  can  not 
follow  the  argument.  The  revision  proposed  is  to  be 
by  the  Republican  party  and  is  not  to  be  a  departure 
from  the  protective  principle  but  in  conformity  with  it. 
It  will  affect  only  those  persons  injuriously  who  are 
making  an  unreasonable  profit  out  of  an  excessive  rate. 
The  present  prosperity  is  not  dependent  on  such  a  profit. 
If  it  were,  then  it  would  not  be  the  prosperity  of  the 
whole  business  community,  but  only  of  a  few  unduly 
favored  at  the  expense  of  the  community.  In  the  pres- 
ent temper  of  the  people,  general  prosperity  has  not 
prevented  the  remedying  of  other  abuses  and  injustice. 
I  don't  know  why  it  should  prevent  this. 

CONTROLLING     REASONS     FOR     DELAY     IN     REVISION     TILL 
AFTER     PRESIDENTIAL     ELECTION 

I  had  occasion  in  a  speech  which  I  delivered  at  Bath, 
Me.,  now  about  a  year  ago,  to  express  my  individual 
opinion  as  in  favor  of  an  immediate  revision  of  the 
tariff,  but  I  there  pointed  out,  and  I  only  refer  to  it  to 
repeat  it  and  emphasize  it,  that  the  revision  of  a  tariff 
involves  so  many  different  interests  the  country  over 
that  it  could  not  be  undertaken  successfully  by  the  Re- 
publican party,  and  therefore  ought  not  to  be  under- 
taken at  all,  until  the  party  as  a  whole  is  in  favor  of  it. 
I  ventured  to  express  the  opinion  that  the  sentiment  in 
favor  of  a  revision  in  the  Republican  party  was  crystal- 
lizing to  such  a  point  that  in  a  short  time  we  might 
expect  to  have  action  upon  the  subject.  What  has 
happened  in  the  last  year  has  only  served  to  confirm 
the  view  I  then  expressed,  and  it  now  seems  to  me  that 
even  most  of  the  extremists  in  the  matter  of  the  tariff 
are  of  opinion  that  it  would  be  not  only  unwise,  but 
unsafe,  for  the  party  to  fail  in  its  next  national  plat- 


204  THE  LEGISLATIVE  POLICIES  OF 

form  to  pledge  itself  to  a  revision  of  the  tariff  as  soon 
after  the  next  Presidential  election  as  possible.  Those 
of  us  who  favor  immediate  revision  can  well  afford  to 
wait  until  after  the  next  Presidential  election  in  order 
to  secure  substantial  acquiescence  by  all  Republicans. 
Certainly  a  delay  of  action  for  eighteen  months  ought 
to  furnish  a  reason  for  no  protectionist  to  invite  the 
certain  business  disaster  that  Democratic  revision  on 
free  trade  lines  would  involve.  More  than  this,  full  time 
should  be  given  for  the  operation  of  a  new  tariff  upon 
the  business  of  the  country  before  the  people  express 
their  opinion  of  it.  The  passage  of  a  bill  by  the  next 
Congress  would  mean  the  consideration  by  Congress  of 
the  tariff  in  the  midst  of  a  Presidential  campaign  with 
all  the  opportunity  for  misrepresentation  of  its  effect 
which  its  practical  operation  for  a  year  or  more  would 
refute.  Furthermore,  with  a  Presidential  election  four 
years  removed,  we  can  count  on  a  revision  less  affected 
by  political  considerations  than  if  made  in  the  heat  of  a 
national  campaign. 

OTHER    SUBJECTS    OMITTED 

There  are  other  subjects  I  should  like  to  discuss — 
Porto  Rico,  Cuba,  the  Philippines,  Santo  Domingo,  the 
Navy,  the  Army  and  our  foreign  policy,  the  race  ques- 
tion and  the  war  amendments,  and  the  order  of  the 
President  dismissing  one  hundred  and  seventy  men  of 
the  25th  Infantry. 

BROWNSVILLE    ORDER 

The  attitude  of  the  President  and  the  War  Depart- 
ment and  the  reasons  for  the  action  taken  in  respect  to 
the  25th  Infantry  were  sufficiently  set  forth  in  the  com- 
munications by  the  President  and  by  me,  sent  to  Con- 


THE  PRESENT  ADMINISTRATION         205 

gress  with  the  evidence  then  taken.  Since  that  time, 
the  Senate  Committee  on  Military  Affairs  has  taken 
3,200  printed  pages  of  evidence  in  the  same  matter, 
and  the  hearing  is  not  concluded.  Until  the  hearing 
is  closed  and  the  Committee  makes  its  report,  it  would 
be  premature  for  me,  in  view  of  my  official  relation  to 
the  matter,  to  express  an  opinion  as  to  the  effect  of  the 
Senate  evidence  on  the  issue  which  the  President  de- 
cided. The  other  topics  I  must  pass  over  for  lack  of 
time. 

ADVANTAGES    OF    REPUBLICAN    PARTY   IN    LEADERSHIP    OF 
PRESIDENT    ROOSEVELT 

I  can  not  close  without  comment  on  the  position  of 
advantage  for  the  coming  National  campaign  which 
President  Roosevelt,  by  the  intense  earnestness,  vigor, 
courage  and  success  with  which  he  has  pressed  the  re- 
forms that  rightly  bear  his  name,  has  secured  to  the 
Republican  party.  A  trimming,  do-nothing,  colorless 
policy  in  face  of  the  proof  of  business,  railway  and 
corporate  abuses  would  certainly  have  driven  the  party 
from  power,  however  little  responsibility  for  them  could 
be  justly  charged  to  it.  It  was  not  political  advantage 
which  the  President  sought  in  these  reforms  but  the  real 
betterment  of  conditions  which  he  has  effected.  Still 
the  belief  of  the  people  in  his  sincerity,  his  courage  and 
his  amazing  quality  for  doing  things  on  their  behalf 
has  won  for  him  a  hold  on  the  American  public,  at  which 
even  his  bitterest  opponents  marvel  and  which  finds  few 
if  any  parallels  in  the  political  history  of  this  country. 
Fortunate  a  party  with  such  a  leader. 


THE  PANIC  OF  1907 

delivered    before    the    merchants    association    of 
boston,  massachusetts,  december  30,  190t 

Gentlemen  of  the  Merchants  Association  of  Bos- 
ton: I  am  glad  to  be  here.  For  more  than  two  years 
I  have  been  trying  to  accept  your  kind  invitation.  I 
do  not  feel  strange  in  this  New  England  company.  My 
father  was  born  in  Vermont.  My  mother  was  born  in 
Boston ;  my  two  grandfathers  were  born  in  Mendon, 
Worcester  County;  much  of  my  boyhood  was  spent  in 
Millbury,  and  I  was  educated  at  Yale.  While  I  can 
not  claim  to  be  one  of  you,  I  like  to  boast  that  I  have 
enjoyed  the  good  influence  of  the  same  traditions. 

I  had  expected  to  talk  to  you  about  the  Philippines 
to-night.  That  was  one  of  the  reasons  why  I  accepted 
the  invitation  so  lightly.  It  is  a  subject  easy  for  me 
to  talk  about.  It  may  be  it  is  getting  a  little  stale. 
For  instance,  I  have  found  that  one  of  the  best  methods 
of  discouraging  my  friends,  the  correspondents  of  the 
press  in  Washington,  from  pursuing  embarrassing  in- 
quiries into  other  matters,  is  to  insist  on  discussing 
with  them  for  publication  interesting  phases  of  the 
Philippine  situation.  They  leave  forthwith.  But  I 
had  supposed  that,  however  dead  the  Islands  might  be 
as  a  topic  inviting  discussion  and  attracting  attention 
elsewhere,  one  could  rouse  some  excitement  over  it  still 
in  Boston.  I  have  been  warned,  however,  that  here,  too, 
there  were  subjects  more  absorbing,  at  least  for  business 
men.  So,  when  I  was  honored  by  an  invitation  for  this 
morning,  to  address  the  Ministers  of  Boston,  whose  pro- 
fession carries  them  naturally  into  a  consideration  of 

206 


THE  PANIC  OF  1907  207 

other  worlds,  I  said  my  say  in  respect  to  the  Philippines, 
and  the,  to  me,  very  absorbing  national  problem,  which 
I  hope  and  believe  we  are  working  out  successfully.  It 
follows  that  for  this  company,  I  must  find  another 
subject. 

During  the  last  three  months,  the  country  has  suffered 
from  a  severe  monetary  panic.  Even  yet  the  clearing- 
house certificates  linger  in  your  bank  exchanges  as  em- 
phatic evidence  of  its  severity  and  the  extreme  measures 
which  had  to  be  taken  to  avoid  greater  disaster.  Doubt- 
less many  of  my  hearers  have  not  yet  recovered  from  the 
intense  nervous  strain  and  mental  suffering  to  which 
they  have  been  subjected  since  the  middle  of  October. 
The  panic  has  been  given  a  certain  political  bearing 
and  importance.  For  this  reason,  I  have  selected  as  my 
topic  of  to-night: 

THE  PANIC  OF    1907,     ITS  CAUSES,  ITS  PROBABLE  EFFECTS, 

AND   THE    RELATION   TO   IT    OF    THE    POLICIES 

OF   THE    NATIONAL   ADMINISTRATION 

What  did  cause  the  panic?  Writers  upon  financial 
subjects  who  have  given  their  lives  and  constant  atten- 
tion to  matters  of  this  kind,  who  are  able  to  institute  a 
comparison  of  the  present  panic  with  previous  panics, 
and  who  are  entirely  familiar  with  the  conditions  preced- 
ing all  of  them,  substantially  agree  upon  the  causes.  Pan- 
ics and  industrial  depressions  are  the  result  of  the  char- 
acteristics of  human  nature,  which  manifest  themselves 
in  business  as  elsewhere.  The  world  generally  has  a 
certain  amount  of  loanable  capital  available  for  new 
enterprises  or  the  enlargement  of  old  ones. 

In  periods  of  prosperity  this  capital  with  the  in- 
strumentalities for  enlarging  its  potentiality  by  credits 
is  put  into  new  enterprises  which  are  profitable,  and  the 


208  THE  PANIC  OF  1907 

increase  in  free  capital  goes  on  almost  in  arithmetical 
progression.  After  a  time,  however,  expenses  of  opera- 
tion and  wages  increase  and  the  profit  from  the  new 
enterprises  grows  smaller.  The  loanable  capital  gradu- 
ally changes  its  form  into  investments  less  and  less  con- 
vertible. Much  of  that  which  might  be  capital  is 
wasted  in  unwise  enterprises,  in  extravagance  in  living, 
in  wars  and  absolute  destruction  of  property,  until  the 
available  free  capital  becomes  well-nigh  exhausted  the 
world  over,  and  the  progress  of  new  enterprises  must 
await  the  saving  of  more.  Men  continue  to  embark  in 
new  enterprises,  however;  the  capital  fails  them,  and 
disaster  comes. 

For  eight  or  nine  months  last  past,  there  were  many 
indications  that  the  loanable  capital  of  the  world  was 
near  exhaustion.  This  result  was  brought  about  not 
only  by  the  enormous  expansion  of  business  plants  and 
business  investments,  which  could  not  be  readily  con- 
verted, but  also  by  the  waste  of  capital  in  extravagance 
of  living  and  by  the  Spanish  war,  the  Boer  war,  and  the 
Russian-Japanese  war,  and  in  such  catastrophes  as 
Baltimore  and  San  Francisco.  It  became  impossible 
for  the  soundest  railroads  and  other  enterprises  to  bor- 
row money  for  new  construction  or  reconstruction.  The 
condition  was  not  confined  to  this  country,  but  extended 
the  world  over  and  was  made  manifest  in  the  countries 
of  Europe  even  before  it  was  felt  here. 

Secondly,  the  conclusion  cannot  be  avoided  that  the 
revelations  of  irregularity,  breaches  of  trust,  stock- job- 
bing, over-issues  of  stock,  violations  of  law,  and  lack  of 
rigid  State  or  National  supervision  in  the  management 
of  some  of  our  largest  insurance  companies,  railroad 
companies,  traction  companies  and  financial  corpora- 
tions shocked  investors  and  made  them  withhold  what 


THE  PANIC  OF  1907  209 

little  loanable  capital  remained  available.  Such  dis- 
closures had  much  more  effect,  probably,  abroad  than 
they  had  here,  because  here  we  were  able  to  make  dis- 
tinctions, while  there,  at  a  remote  distance,  the  revela- 
tions created  distrust  in  our  whole  business  fabric. 

When,  therefore,  two  or  three  institutions,  banks  and 
trust  companies,  supposed  to  be  solid,  were  found  to 
have  their  capital  impaired  by  stock- jobbing  of  their 
officers,  the  public  were  easily  frightened  and  the  run 
upon  the  banks  began.  The  question  then  became  not 
one  of  loanable  capital  but  of  actual  money  to  be  used  in 
the  transactions  of  the  day, — a  very  different  question, 
though,  of  course,  closely  related. 

It  would  seem  that  our  system  of  currency  is  not  ar- 
ranged so  as  to  permit  its  volume  to  be  increased  tempo- 
rarily to  counteract  the  sudden  drain  of  money  by  the 
hoarding  in  a  panic.  It  is  probable  that  the  stringency 
which  reached  its  height  on  that  dark  day  of  October 
twenty-fourth,  might,  in  part,  have  been  alleviated,  had 
we  had  a  currency  which  could  automatically  enlarge 
itself  to  meet  the  tremendous  demand  of  a  day  or  a  week 
or  a  month,  while  public  confidence  was  being  restored. 
The  National  Administration,  together  with  many  of 
the  large  capitalists  of  New  York  and  elsewhere,  put 
their  shoulders  under  the  load  and  by  various  devices  of 
an  unusual  character  have  brought  about  the  present 
condition  of  gradually   increasing  confidence. 

The  injurious  consequences  to  follow  from  this  panic 
are  not  likely  to  be  so  long  drawn  out,  or  to  result  in 
such  disastrous  industrial  depression,  as  the  panic  of 
1893,  or  the  panic  of  1873,  and  this,  for  the  reason 
that  the  condition  of  the  country  makes  it  so  much 
easier  to  resume  business  gradually,  to  accumulate  capi- 
tal, and  then  to  renew  the  enterprises  which  had  to  be 


210  THE  PANIC  OF  1907 

abandoned  for  lack  of  it.  In  the  first  place  we  have  a 
gold  currency  with  no  suggestion  now  of  a  departure 
from  the  gold  standard.  In  1893,  the  pressure  for  free 
silver  was  on,  and  the  threat  of  National  repudiation 
had  much  to  do  with  the  delay  in  the  return  to  pros- 
perous times.  Our  Government  finances  now  are  in  ex- 
cellent condition  and  we  have  a  large  surplus.  Our 
farming  communities  in  the  West  to-day  are  not  under 
the  weight  of  mortgages  and  of  debt  which  distressed 
them  in  1893  and  in  1873.  They  are  prosperous  and 
wealthy. 

Again,  the  railroads,  which  make  up  a  large  part  of 
the  wealth  of  this  country,  are  on  a  much  solider 
foundation  than  they  were  in  1893.  Then  many  of 
them  had  to  be  taken  into  the  hands  of  receivers  and  im- 
mense amounts  expended  by  means  of  receivers'  certifi- 
cates, displacing  and  destroying  the  value  of  vested 
securities  in  order  to  put  roads  in  a  safe  and  income- 
earning  condition.  The  railroads  to-day  are  in  a  better 
physical  condition  than  they  have  ever  been  in  their 
history.  But  few  of  them  have  recently  been  built  into 
new  territory  in  which  business  has  to  be  created  by 
introducing  a  new  population. 

Again,  the  balance  of  trade  is  with  us.  We  were  able 
to  settle  for  the  hundred  millions  of  gold  that  we  with- 
drew from  Europe  in  order  to  meet  the  demand  for 
money  in  the  markets  in  New  York  by  the  excess  of  our 
exports  over  our  imports  in  the  single  month  of  October. 

All  these  things  point  to  the  probability  of  a  restora- 
tion of  confidence  and,  after  a  proper  liquidation  and  an 
industrial  depression  of  some  months,  to  a  resumption 
of  business  on  a  normal  basis. 

Modern  business  is  conducted  on  a  system  of  credit 
which,  in  normal  times,  increases  the  facility  with  which 


THE  PANIC  OF  1907  211 

the  work  of  manufacture,  production  and  sale  can  be 
carried  on,  a  thousand-fold  beyond  the  limit  of  earlier 
days,  and  enables  a  total  of  many  billions  to  rest  on  a 
very  small  percentage  of  actual  money  passed.  Every 
manufacturer,  every  merchant,  is,  under  modern  condi- 
tions, dependent  in  the  successful  conduct  of  his  busi- 
ness upon  bank  credits  extended  at  regular  seasons.  The 
banks  themselves  in  turn  acquire  the  means  of  granting 
these  credits  largely  from  the  money  of  their  depositors. 
And  in  loaning  from  their  deposits,  the  banks  rely  on 
the  improbability  that  more  than  a  certain  part  of  the 
deposits  will  be  called  for  at  any  one  time.  A  lack  of 
public  confidence  in  the  banks  creates  a  common  desire 
among  bank  depositors  to  withdraw  their  money.  The 
fright  which  seizes  the  creditor — the  depositor — and 
leads  him  to  hoard  his  money,  spreads  like  wildfire  and 
is  as  unreasoning  and  unreasonable  as  the  spirit  of  a 
mob.  A  run  on  the  banks  ensues.  The  banks  then  call 
on  their  debtors,  and  the  tremendous  structure  depend- 
ing upon  credit  tumbles.  Meantime,  men  who  properly 
count  themselves  as  millionaires,  who  are  honest,  con- 
servative, solid  business  men  always  responding  to  their 
obligations,  find  themselves  as  helpless  under  such  a 
financial  cataclysm  as  they  would  be  in  an  earthquake. 
Gradually,  reason  resumes  its  sway,  but  the  injury  to 
credit  and  the  blow  which  has  been  struck  at  the  normal 
business  progress  has  more  or  less  permanence.  Values 
have  shrunk,  plans  for  new  and  increased  business  enter- 
prises must  be  abandoned,  and  liquidation  and  house- 
cleaning  take  place.  The  business  men  who  have  had 
to  stand  the  strain — who  have  seen  their  fondest  hopes 
crushed,  and  have  only  been  able  to  come  through  the 
crisis  with  the  greatest  effort  and  most  substantial 
financial  loss — are  naturally  sore  and  depressed.     They 


212  THE  PANIC  OF  1907 

believe,  and  generally  they  are  right,  that  this  disaster 
has  come  upon  them  without  fault  of  theirs.  It  is  un- 
just to  them.  No  matter  how  many  symptoms  of  the 
coming  trouble  there  may  have  been,  panics  always 
come  with  a  shock  and  a  tremendous  surprise  and  dis- 
appointment. And  hardly  is  the  panic  over  but  a  fierce 
discussion  arises  as  to  the  cause  of  its  coming.  With 
various  motives,  editors  and  public  speakers  rush  to  the 
front  to  fasten  upon  some  thing  or  some  one  the  respon- 
sibility for  what  has  happened.  It  is  entirely  natural 
that,  in  the  condition  of  mind  in  which  the  suffering 
business  men  are  left  by  the  great  strain  and  trial,  such 
suggestions  should  receive  marked  attention  and  that 
the  more  definitely  the  personality  of  the  scapegoat  can 
be  fixed,  the  more  pleasure  it  gives  the  victims  of  the 
catastrophe. 

This  mental  attitude  of  the  business  community  which 
I  have  described  as  likely  to  be  found  after  every  fi- 
nancial panic  is  clearly  present  to-day.  The  economic 
and  political  history  of  the  last  four  years  gives  it 
especial  importance,  because  it  offers  to  certain  elements 
in  the  business  and  political  community  an  exceptional 
opportunity.  Let  me  invite  your  attention  to  that  his- 
tory. It  is  one  of  a  giant  struggle  between  the  Na- 
tional Administration  and  certain  powerful  combina- 
tions in  the  financial  world.  These  combinations,  for 
lack  of  a  better  name,  are  called  "  trusts."  They  en- 
gaged in  different  lines  of  manufacture  and  production, 
and  by  assembling  large  amounts  of  capital  into  one 
mass  in  a  particular  line  of  business,  managed,  by  artful 
and  skillfully  devised  but  illegal  methods  of  duress,  to 
exclude  competition  and  monopolize  the  trade.  They 
became  the  dictators  to  great  railroads,  however  power- 
ful, and  by  threatening  a  withdrawal  of  patronage  se- 


THE  PANIC  OF  1907  213 

cured  unlawful  and  discriminating  rebates,  greatly  in- 
creasing their  profits,  and  still  more  completely  sup- 
pressing competition.  Managed  with  conspicuous 
business  ability,  these  trusts  went  into  legitimate  for- 
eign trade  and  largely  increased  our  country's  exports. 
The  profits  which  they  had  realized  enabled  them  to 
engage  in  other  enterprises  carried  on  by  legitimate 
methods  until  the  hold  which  they  acquired  in  the  busi- 
ness community  gave  them  a  position  of  vantage  which 
it  seemed  hopeless  to  combat.  The  basis  of  their  origi- 
nal success  and  the  maintenance  of  their  power  was  the 
violation  of  the  Sherman  Anti-trust  law  and  the  Inter- 
state Commerce  law,  and  for  a  time  both  laws  were  but 
dead-letters  upon  the  statute  books  of  the  United  States. 
The  purpose  of  the  administration  of  Mr.  Roosevelt 
was  to  make  these  men,  however  powerful  and  wealthy, 
to  know  that  the  laws  upon  the  statute  books  were  living 
things  and  must  be  obeyed.  It  was  not  proposed  that 
the  legitimate  enterprises  that  were  carried  on  with  the 
capital  of  these  men  should  be  destroyed.  It  was  not 
proposed  that  the  foreign  trade  which  inured  to  the 
benefit  of  the  whole  country  should  be  struck  down ;  but 
it  was  determined  that  those  who  were  making  the 
statutes  a  dead  letter  should  be  subject  to  restraint  by 
injunction  processes  and  punishment  by  indictment — 
not  as  a  matter  of  revenge — not  to  gratify  the  exercise 
of  power,  but  to  eradicate  systematic  lawlessness  from 
our  business  system.  In  this  struggle  the  Administra- 
tion has  been  greatly  aided  by  the  popular  sympathy 
awakened  by  revelations  as  to  breaches  of  trust  by  the 
managers  of  some  of  the  great  insurance  companies ; 
by  revelations  as  to  mismanagement  in  the  internal 
affairs  of  great  railroad  companies,  by  the  disclosures 
as  to  the  enormous  amount  of  rebates  extorted  from 


214  THE  PANIC  OF  1907 

the  railroad  companies  by  these  trusts ;  and  by  the  con- 
scienceless stock- j  obbing  and  over-issue  of  bonds  and 
stocks  shown  to  have  occurred  in  the  management  of 
some  of  our  great  corporations. 

There  was  a  moral  awakening  among  the  people,  and 
the  hands  of  the  Administration  were  held  up  in  the 
work  which  it  was  doing.  On  the  other  hand,  the  men 
and  the  interests  which  were  the  subject  of  attack  were 
not  idle.  They  had  their  partisans — guilty  and  inno- 
cent. The  guilty,  of  course,  wished  to  defeat  the  Ad- 
ministration by  any  means.  The  innocent  were  those 
who  had  become  involved  with  trust  magnates  in  legiti- 
mate business  transactions  and  to  whom  the  attitude  of 
the  Administration  seemed  one  of  general  opposition  to 
the  whole  business  community. 

One  of  the  great  manifestations,  one  of  the  monu- 
ments in  this  moral  progress,  was  the  passage  of  the 
railroad  rate  bill.  It  met  the  opposition  of  many  of 
the  railroads,  not  because  they  were  in  sympathy  with 
the  trusts,  for  I  think  they  in  many  respects  had  been 
more  sinned  against  than  sinning,  but  because  they  re- 
sented that  close  control,  that  rigid  supervision  which 
the  public  demanded,  in  view  of  the  possibilities  which 
the  disclosure  as  to  their  past  transactions  revealed.  The 
fight  made  by  the  Administration  has  been  a  noteworthy 
one.  And  now,  after  the  victory  has  been  won,  after 
there  has  been  introduced  into  the  hearts  of  all  men,  and 
especially  of  those  leaders,  these  trust  managers  and 
financial  opponents  of  the  administration,  the  fear  of 
the  law — the  panic  comes  on.  The  trust  magnates 
solidly  intrenched  with  great  financial  resources  are  not 
the  ones  who  suffer  the  most  from  it.  It  is  the  men  who 
have  had  no  such  unlawful  or  fruitful  method  of  making 
money — the  great  body  of  business  men  and  the  wage- 


THE  PANIC  OF  1907  215 

earners.  This  is  the  feature  of  the  panic  that  arouses 
one's  deepest  sympathy  and  regret. 

The  agents  and  sympathizers  and  defenders  of  the 
trusts  and  others  innocent,  but  mistaken,  now  rush  for- 
ward to  place  the  blame  of  the  present  conditions  upon 
the  Administration.  They  seek  to  use  the  panic  as  an 
argument  for  giving  up  the  moral  victory  which  has 
been  won.  Apparently  they  would  take  a  retrograde 
step  back  to  the  conditions  that  existed  five  and  six  and 
ten  years  ago,  when,  unhampered  by  statute  law,  these 
trusts  were  building  the  financial  bulwarks  behind  which 
they  are  now  fighting.  They  rely  upon  the  soreness 
and  the  mental  strain  and  suffering,  through  which  all 
the  honest  business  men  of  the  community  have  had  to 
pass,  as  a  golden  opportunity  for  driving  home  their 
attacks  upon  the  Administration  and  for  paralyzing  the 
onward  movement  toward  supremacy  of  the  law. 

I  have  set  forth  what  I  believe  to  be  the  real  ex- 
planation of  the  panic.  Let  us  examine  the  specifica- 
tions of  our  opponents  now  made  to  show  that  the 
Administration  is  responsible.  In  the  first  place,  it  is 
said  that  the  policy  of  the  Administration  has  been 
directed  for  the  last  four  years  against  organized  capi- 
tal, and  that  it  has  thereby  frightened  investors.  I 
deny  it.  The  course  of  the  Administration  has  been 
directed  against  such  organized  capital  as  was  violat- 
ing the  statutes  of  the  United  States — and  no  other. 
It  had  every  consideration  and  desire  to  aid  and  assist 
organized  capital  which  was  engaged  in  legitimate 
business. 

It  is  true  that  the  execution  of  the  policy  of  the  Ad- 
ministration has  involved  the  bringing  to  the  light  of 
public  criticism  the  violations  of  law  by  influential  and 
powerful  corporations,  and  their  prosecution.     Through 


216  THE  PANIC  OF  1907 

the  investigations  of  National  and  State  tribunals  there 
have  been  revealed,  as  I  have  already  said,  breaches  of 
trust,  stock- jobbing,  over-issue  of  stocks  and  misman- 
agement in  some  of  our  largest  corporations.  They 
have  properly  been  severely  condemned  by  all,  including 
the  President.  Knowledge  of  these  things  doubtless 
affected  our  credit  in  Europe  and  hastened  the  panic; 
but  those  who  are  morally  responsible  for  such  a  result 
are  the  guilty  managers,  not  those  who,  in  the  course 
of  their  official  duty,  have  made  known  to  the  business 
world  the  facts,  and  commented  on  them. 

It  is  said  that  the  Administration  has  arraigned  the 
whole  business  community  as  dishonest.  I  deny  it. 
The  President  has  condemned  the  law-breakers.  He  has 
convinced  those  who  have  unlawfully  accumulated  enor- 
mous powers  and  capital  that  they  are  not  immune. 
He  has  put  the  fear  of  the  law  in  their  hearts.  They 
have  been  acute  enough  to  attempt  to  protect  them- 
selves by  giving  the  impression  that  his  action  has  been 
directed  against  the  whole  business  community.  It  is 
true  that  the  business  men  of  our  community,  as  a  whole, 
are  honest,  and  their  methods  are  sound.  The  Presi- 
dent has  never  said  otherwise.  Indeed,  it  is  chiefly  in 
the  interest  of  the  great  body  of  honest  business 
men  that  he  has  made  his  fight  for  lawful  business 
methods. 

Again,  it  is  said  that  the  Rate  Bill,  for  which  the 
Administration  is  responsible,  caused  the  present  panic. 
Could  anything  be  more  absurd?  The  object  of  the 
Rate  Bill  was  merely  to  bring  the  railroads  under  closer 
supervision  of  a  tribunal  which  could  act  upon  com- 
plaints of  individuals  suffering  from  their  injustice. 
The  immediate  effect  of  its  passage  was  the  voluntary 
reduction  of  rates.     Subsequently,  under  normal  cir- 


THE  PANIC  OF  1907  217 

cumstances  justifying  it,  the  rates  of  the  railways  gen- 
erally were  increased.  The  continuance  of  the  abuses 
of  the  railway  management  was  made  by  the  Rate  Bill 
much  more  difficult,  but  the  Rate  Bill  has  not  had  the 
slightest  effect  upon  the  legitimate  business  earnings  of 
the  railways.  The  utter  hollowness  in  the  cry  that  the 
Rate  Bill  caused  the  panic,  is  seen  in  the  fact  that  those 
who  now  venture  to  advance  this  proposition  have  been 
for  more  than  a  year  contending  that  the  Rate  Bill  was 
a  humbug  and  a  fraud  because  it  had  no  effect  what- 
ever— because  it  had  given  promise  of  a  reduction  of 
rates  and  no  reduction  of  rates  followed. 

Then  State  legislation  against  railroads  is  pointed 
to  as  a  cause  for  shrinkage  in  the  value  of  the  stocks 
and  for  the  panic.  Mr.  Roosevelt  and  the  National 
Administration  are  not  responsible  for  this.  It  was  oc- 
casioned by  the  same  revelations  of  lawlessness  and  dis- 
crimination in  railway  management  that  made  the 
Federal  Rate  Bill  a  necessity.  If  the  State  measures 
have  been  too  drastic,  the  cause  of  the  injustice  is  not 
with  the  National  Government. 

Instead  of  making  a  panic,  the  national  policy,  of 
ending  the  lawlessness  of  corporations  in  interstate  com- 
merce, and  of  taking  away  their  power  of  issuing,  with- 
out supervision,  stocks  and  bonds,  will  produce  a  change 
in  their  management  and  remove  one  fruitful  cause  for 
loss  of  public  confidence. 

The  business  men  in  the  past  have  sympathized  with 
the  effort  to  eradicate  from  the  business  system  of  this 
country  the  influence  and  control  of  those  who  have 
achieved  success  by  illegal  methods.  Is  all  this  to  be 
changed  by  the  panic?  Is  it  proposed,  because  of  it, 
to  repeal  the  Rate  Bill?  Shall  we  dismiss  the  prosecu- 
tions for  violations  of  the  anti-trust  law?      Shall  we 


218  THE  PANIC  OF  1907 

permit  and  encourage  rebates  and  discriminations  by 
railways?  Is  this  the  condition  of  sanity  to  which  we 
are  invited  to  return  ?  Shall  we  j  oin  in  the  sneer  at  ,the 
fight  of  the  Administration  for  honesty  and  legality  in 
business  as  a  youthful  attempt  at  an  alleged  moral  re- 
generation of  our  business  system?  No  panic,  however 
severe,  can  make  wrong  right.  No  man  who  sincerely 
believed  the  Administration  right  in  its  measures  to 
punish  violations  of  law,  can  now  turn  from  the  earnest 
support  of  that  policy  to-day. 

I  believe  myself  to  be  as  conservative  as  anyone  within 
this  company.  I  believe  that  in  connection  with  per- 
sonal liberty,  the  right  of  personal  property  is  the  basis 
of  all  our  material  progress  in  the  development  of  man- 
kind, and  that  any  change  in  our  social  and  political 
system  which  impairs  the  right  of  private  property 
and  materially  diminishes  the  motive  for  the  accumula- 
tion of  capital  by  the  individual,  is  a  blow  at  our  whole 
civilization.  But  no  one  can  have  been  an  observer  of 
the  operation  of  the  exercise  of  the  right  of  property 
and  the  accumulation  of  capital  and  its  use  in  business 
by  the  individual  and  the  combination  of  capital  by  the 
combination  of  individuals,  without  seeing  that  there 
are  certain  limitations  upon  the  methods  in  the  use  of 
capital  and  the  exercise  of  the  right  of  property,  that 
are  indispensable  to  prevent  the  absolute  control  of  the 
whole  financial  system  of  the  country  passing  to  a 
small  oligarchy  of  individuals. 

The  combination  of  capital  is  just  as  essential  to 
progress  as  the  assembling  of  the  parts  of  a  machine; 
and  hence,  corporations,  however  large,  are  instruments 
of  progress.  But  when  they  seek  to  use  the  mere  size 
or  amount  of  the  capital  which  they  control  to  monop- 
olize the  business  in  which  they  are  engaged,  and  to 


THE  PANIC  OF  1907  219 

suppress  competition  by  methods  akin  to  duress,  they 
should  be  restrained  by  law. 

Again,  I  am  earnestly  opposed  to  the  government 
ownership  of  the  interstate  railways,  which  are  the 
arterial  system  of  this  country.  Those  railways  should 
continue  to  be  managed  by  private  corporations.  Gov- 
ernment ownership  of  railways  means  State  socialism, 
an  increase  in  the  power  of  the  central  government  that 
would  be  dangerous.  It  would  be  a  long  step  away 
from  the  individualism  which  it  is  necessary  to  retain 
in  order  to  make  real  progress.  But  no  one  could  de- 
fend a  railway  system  in  which  the  unlawful  discrimina- 
tions by  secret  rebates  and  otherwise  were  practically 
without  limit  in  the  interest  of  the  trusts  and  against 
the  ordinary  shipper.  These  abuses  can  only  be  reached 
and  ended  by  closely  regulating  the  railways  and 
putting  them  under  the  tribunal  which  can  insist  upon 
publicity  of  business  and  in  cases  of  complaint  can 
direct  the  exact  remedy  for  the  wrong. 

If  the  abuses  of  monopoly  and  discrimination  can  not 
be  restrained;  if  the  concentration  of  power  made  pos- 
sible by  such  abuses  continues  and  increases,  and  it  is 
made  manifest  that  under  the  system  of  individualism 
and  private  property  the  tyranny  and  oppression  of  an 
oligarchy  of  wealth  can  not  be  avoided,  then  socialism 
will  triumph  and  the  institution  of  private  property  will 
perish. 

The  Administration  has  been  thus  far  successful  in 
showing  that  dangers  from  individualism  can  be  effec- 
tively regulated,  and  that  abuses  in  the  exercise  of 
private  property  can  be  restrained.  Thus  a  great  con- 
servative victory  has  been  won  and  the  coming  of  social- 
ism has  been  stayed. 

The  question  which  you  have  ultimately  to  meet  is  not 


220  THE  PANIC  OF  1907 

whether  we  shall  return  to  a  condition  of  unregulated 
railways  and  unregulated  trusts ;  but  it  is  whether  we 
shall  maintain  a  strict  system  of  regulation  of  railways 
and  trusts  or  whether  we  shall  turn  the  country  over  to 
the  advocates  of  Government  ownership  and  State  so- 
cialism. Anyone  who  seeks  a  retrograde  step  from  the 
policy  of  the  Administration,  on  the  theory  that  it  would 
be  a  real  step  toward  conservatism,  is  blind  to  every 
political  sign  of  the  times. 

If  one  attempts  to  fix  the  center  of  the  conservatism 
of  the  country,  he  is  likely  to  fix  it  in  New  England. 
If  he  is  seeking  a  community  where  appeals  to  right- 
eousness and  justice  awaken  a  response,  he  will  find  it  in 
New  England.  Hence  it  is  that  I  have  ventured  at 
this  time  and  under  the  circumstances  I  have  described, 
to  discuss  the  political  aspects  of  this  panic,  and  to 
appeal  to  you,  whether  Democrats  or  Republicans,  not 
to  allow  an  acute  condition  involving  pecuniary  loss  and 
mental  strain,  serious  as  it  is,  to  lead  you  from  the 
broad,  impartial,  just  and  patriotic  view  of  the  situa- 
tion. In  this  widespread  catastrophe,  I  have  the  deep- 
est sympathy  with  the  great  body  of  business  men  and 
wage-earners,  who  I  know  are  honest,  and  who  have  to 
bear  the  brunt  of  it.  And  I  feel  the  greatest  solicitude 
and  anxiety  for  their  recovery ;  but  I  urge  them  not  to 
allow  their  resentment  at  conditions  to  be  made  a  weapon 
against  the  public  weal. 


SOUTHERN   DEMOCRACY  AND   REPUBLICAN 
PRINCIPLES 

LEXINGTON,  KENTUCKY,  AUGUST  %%  1907 

It  is  a  great  pleasure  for  me  to  be  given  the  opportunity 
to  address  an  audience  like  this  of  a  state  lying  next 
to  my  own,  and  one  with  which  I  have  been  more  or 
less  familiar  since  boyhood.  I  can  well  remember  how 
often,  in  early  years,  I  looked  over  from  the  suburbs  of 
Cincinnati,  where  I  was  born  and  brought  up,  to  Ken- 
tucky, and  I  discovered  the  signs  of  coming  summer  in 
the  apple,  peach  and  cherry  trees  that  flung  out  their 
beautiful  banners  of  blossoms  on  the  green  hills  imme- 
diately opposite. 

As  one  looks  over  this  blue  grass  region  far-famed  as 
it  is  for  its  beautiful  women,  magnificent  horses  and 
other  things,  a  country  that  God  has  blessed  in  so  many 
different  ways — and  observes  the  wealth  and  prosperity 
of  its  inhabitants,  and  the  comfort  which  they  enjoy 
on  every  hand,  he  is  moved  to  inquire  why  it  is  that 
in  the  governmental  control  of  this  great  United  States, 
so  fair,  so  educated,  so  intelligent  a  community  as  that 
of  Kentucky  wields  comparatively  so  small  an  influence 
on  the  general  government.  Why  is  it  that  Ken- 
tuckians  are  not  in  the  councils  of  the  Nation?  It  is 
true  they  have  their  Congressional  and  Senatorial  rep- 
resentatives, but  why  is  it  that  in  framing  the  policies 
— foreign  and  domestic — with  which  we  have  to  do  as 
a  nation,  Kentuckians,  like  their  brethren  of  all  the 
Southern  states,  have  so  little  to  say?  This  patent  fact 
in  respect  to  the  Government  at  Washington  has  not 
failed  to  escape  the  attention  of  the  leading  men  who 

221 


222  SOUTHERN  DEMOCRACY  AND 

represent  the  South  in  Congress,  and  it  has  called  for 
regretful  comment  with  explanations  that,  with  defer- 
ence to  those  who  make  them,  I  submit  are  not  the  true 
ones.  The  reason  why  the  South  exerts  so  little  politi- 
cal influence  in  the  guidance  of  the  nation  is  because  one 
single  issue  has  made  it  the  perpetual  tail  of  the  Demo- 
cratic party,  so  that  however  small  the  Northern  head, 
it  wags  that  tail.  The  South  has  permitted  the  shadow 
of  an  issue  that  circumstances  in  this  state  ought  long 
ago  to  have  removed  from  political  controversy  to  bind 
it  solidly  to  the  Democratic  party,  no  matter  what  prin- 
ciples or  candidates  that  party  has  adopted. 

The  specter  of  so-called  negro  domination,  the  threat 
of  a  recurrence  to  the  days  of  reconstruction,  however 
weighty  they  might  have  been  at  one  time  in  the  history 
of  the  far  Southern  states,  have  never  had  any  sub- 
stantial weight  or  reason  for  being  in  this  great  State 
of  Kentucky,  for  the  colored  people  of  the  state  were 
never  so  numerous  as  the  white  voters.  The  force  of 
inertia  keeping  voters  in  the  Democratic  party  on  the 
race  issue  was  in  this  state  always  a  mere  sentiment 
without  reason.  Nevertheless,  Kentucky  has  trailed 
along  with  her  sisters  further  south.  It  has  always 
been  regarded  as  a  solid  Democratic  state,  no  mat- 
ter what  the  Democratic  party  did  in  its  conven- 
tion, no  matter  whom  it  nominated.  Under  those  cir- 
cumstances, with  human  nature  as  it  is,  why  should 
the  Northern  Democrats  pay  the  slightest  attention 
to  what  the  Kentucky  Democrats  desired?  Why  should 
the  Northern  Republicans,  who  could  not  expect  a 
majority  in  Kentucky,  pay  the  slightest  attention 
to  what  the  people  of  Kentucky  wished?  Why  should 
the  President  take  into  his  Cabinet  a  representa- 
tive from  Kentucky?     Kentucky,  while  an  agricultural 


REPUBLICAN  PRINCIPLES  223 

state,  is  developing  great  manufactories.     It  is  develop- 
ing great  mining  industries — and  all  of  them  are  more 
or  less  dependent  for  their  success  upon  the  protective 
tariff.     There  are  a  number,  I  doubt  not,  of  sincere  pro- 
tective tariff  men  among  the  Democrats  of  Kentucky, 
and  yet  throughout  these  forty  years  since  the  war,  they 
have  come  forward  solidly  and  stolidly  to  vote  the  Demo- 
cratic ticket  merely  because  of  the  feeling  on  the  race 
issue    which    they    derived    from    their    far    Southern 
brethren.     Now  is  not  it  time  for  a  manly  and  highly 
intelligent  electorate  to  commune  with  itself  and  to  say 
to  itself  at  the  polls,  it  shall  establish  its  right  to  be 
considered  by  both  parties  as  a  factor  in  making  up 
national  policies  and  in  selecting  national  candidates? 
We  have  arrived  in  the  history  of  the  politics  of  this 
country  at  what  seems  to  be  a  repetition  of  that  condi- 
tion which  existed  at  the  end  of  Monroe's  second  ad- 
ministration, called  the  era  of  good  feeling.     After  vio- 
lent outbursts  against  President  Roosevelt  for  his  ex- 
pressed sympathy  with  the  colored  man,  the  men  of  the 
South  generally  have   come   to  recognize   the   sterling 
virtues  and  courage  and  independence  of  our  President, 
and  I  venture  to  say  that  there  is  no  section  of  the  coun- 
try in  which  he  is  more  popular  than  he  is  in  the  South 
to-day.     It  was  not  an  exaggeration  when  a  gentleman 
of  Texas,  who  greeted  the  President  on  behalf  of  one 
of  the  cities  of  that  state,  said  to  him :  "  Mr.  President, 
we  welcome  you  to  a  state  where  you  have  more  friends 
and  fewer  voters  than  any  state  in  the  Union."     That 
was  true.     That  was  an  anomaly,  and  what  I  ask  you 
to-day  is,  is  there  any  reason  for  the  existence  of  such 
an  anomaly — whether  the  time  has  not  come,  especially 
for   men  of  Kentucky,   in  which   there  was   never   the 
slightest  occasion  for  the  race  feeling,  to  support  Presi- 


SOUTHERN  DEMOCRACY  AND 

dent  Roosevelt,  not  only  in  expressions  of  good  will,  not 
only  in  praise  and  approval,  but  also  in  that  which 
counts,  in  casting  their  ballots  in  behalf  of  the  party 
and  its  candidates,  of  which  he  is  the  head. 

I  propose  with  your  permission  for  a  little  while  to 
take  up  the  race  question.  It  is  a  question  that  it  is 
difficult  to  deal  with  impartially  and  in  a  spirit  of 
friendliness  and  charity  toward  all  sides,  so  as  to  avoid 
irritating  phrases  and  bitter  responses.  And  yet  when 
one  comes  into  a  Southern  community,  with  that  re- 
garded as  perhaps  the  chief  question  of  the  day,  one 
can  not  be  frank  and  courageous,  and  avoid  it.  I  know 
that  the  discussion  by  a  Northern  man  of  the  question 
is  apt  to  rouse  on  the  part  of  the  Southern  Democrat 
the  objection  that  he  does  not  understand  the  question, 
that  he  does  not  know  the  difficulties  of  it,  and  that  if  he 
can't  take  it  up  with  sj^mpathy  with  the  attitude  of 
the  white  man  in  the  South,  he  had  better  not  take  it  up 
at  all.  On  the  other  hand,  he  is  liable  to  encounter  the 
criticism  of  the  colored  men,  who,  with  a  natural  sensi- 
tiveness and  interest  in  their  race,  and  remembering 
the  wrongs  and  oppression  to  which  their  race  has  been 
subjected  in  times  past,  resent  on  the  part  of  the 
Northern  man  any  attitude  which  does  not  involve  con- 
demnation of  the  attitude  of  the  Southern  white  man, 
or  which  manifests  the  slightest  consideration  for  his 
view.  I  am  not  a  pessimist  with  respect  to  the  race 
question.  I  am  convinced  that  it  is  working  itself  out, 
and  I  am  convinced  that  nothing  has  so  much  con- 
tributed to  its  gradual  solution  as  the  13th,  14th  and 
15th  amendments. 

The  13th  amendment  abolished  slavery.  There  have 
been  some  intermittent  attempts  on  the  part  of  extreme 
men  in  the  South  at  times  to  revive  a  system  of  involun- 


REPUBLICAN  PRINCIPLES  225 

tary  servitude,  called  peonage,  which,  however,  is  sub- 
ject to  prosecution  under  the  Federal  law,  and  which 
we  may  expect  to  be  eliminated  in  due  course.  The 
13th  amendment  on  the  whole  has  been  entirely  effec- 
tive to  release  the  slaves. 

In  the  14th  amendment  the  colored  man  has  been 
guaranteed  against  state  or  other  action  or  any  effort 
to  deprive  him  of  life,  liberty  or  property  without  due 
process  of  law.  Under  this  amendment  and  in  con- 
formity to  it,  those  who  were  slaves,  and  the  colored 
people  who  have  been  born  since,  have  been  able  through- 
out the  Southern  states  to  earn  and  save  their  money 
and  to  make  themselves  useful  members  of  the  com- 
munity. By  the  13th  amendment  four  millions  of  them 
were  taken  from  their  masters  and  turned  out  upon  the 
world  to  enjoy  freedom.  In  the  outset  this  certainly 
seemed  to  be  a  heavy  burden — that  they  who  had  been 
wont  to  depend  on  others  not  only  for  their  food  and 
clothing  but  for  the  guidance  of  their  lives,  should 
now  be  made  to  depend  upon  themselves  to  find  the  work 
and  earn  the  wages  with  which  they  might  stand  up  and 
support  themselves  as  free  citizens  of  this  country.  It 
was  a  long,  hard,  severe  lesson  through  which  these  four 
millions,  now  increased  to  eight,  had  to  go.  There  were 
but  five  per  cent,  of  them  who  were  literate ;  ninety-five 
per  cent,  were  in  the  darkness  of  utter  ignorance.  For 
a  time  general  education  was  thought  to  be  the  best 
means  of  uplifting  the  race,  and  undoubtedly  the  re- 
moval of  illiteracy  was  a  great  boon  to  it ;  but  in  the 
past  two  decades  under  the  influence  of  General  Arm- 
strong, Dr.  Frisell  and  Booker  Washington,  the  wisdom 
of  making  the  education  manual  and  industrial  for  the 
benefit  of  the  great  bulk  of  the  race  has  been  made  mani- 
fest.    The  colored  people  have  been  taught  by  their 


226  SOUTHERN  DEMOCRACY  AND 

greatest  leader,  Mr.  Washington,  that  the  way  for  the 
negro  to  build  himself  up  is  to  make  himself  useful  as  a 
laborer — unskilled  and  skilled — as  a  farmer  and  as  a 
business  man  in  the  community  of  which  he  forms  part. 
As  he  lives  in  an  agricultural  country  he  should  learn 
that  the  best  home  for  the  negroes  is  the  farm  and  that 
the  best  property  which  he  can  accumulate  is  farm  land 
and  farm  equipment.  I  shall  not  stop  to  give  you  the 
statistics  showing  the  great  progress  that  has  been 
made  by  the  negro  race  in  the  South  in  literacy,  in  the 
enormous  increase  in  the  farm  holdings  by  colored  men 
and  the  great  proportion  of  the  agriculture  of  the  South 
that  they  carry  on.  We  are  apt  to  forget  this  real 
improvement  in  the  diatribes  that  we  occasionally  hear 
from  men  who  seem  to  have  a  lack  of  sympathy  with  the 
progress  of  the  colored  race  and  who  lose  themselves  in 
denunciation  of  the  entire  race  on  account  of  a  com- 
paratively small  criminal  class  that  formed  the  dregs 
of  the  Southern  population. 

I  shall  not  rehearse  the  history  of  reconstruction  or  of 
the  bloody  days  of  the  South  that  followed  it,  or  of  the 
fraud  and  oppression  and  violence  with  which  the  15th 
amendment  was  nullified  in  the  far  Southern  states. 
Suffice  it  to  say  that  the  negro  vote  in  those  days  was 
made  to  count  for  nothing.  But,  as  always  happens 
where  law  is  flouted  and  fraud  and  violence  are  allowed 
to  have  full  sway,  the  good  people  in  the  community 
found  that  the  triumph  of  such  methods  had  a  tendency 
to  create  a  demoralization  in  all  walks  of  life.  There- 
fore, we  find  in  every  Southern  state  a  movement  on  the 
part  of  the  good  element  in  the  Democratic  party  to 
introduce  new  laws  and  new  constitutions,  which  shall 
make  the  exclusion  of  the  negro  from  the  ballot  square 
with  the  law.     So  we  have  these  constitutional  amend- 


REPUBLICAN  PRINCIPLES  227 

ments  which  introduce  educational  and  property  quali- 
fications for  electors,  with  clauses  called  "  grandfather 
clauses,"  which  permit  voting  on  a  basis  of  ancestry. 
The  grandfather  clauses  are  supposed  to  permit  the 
poor  ignorant  white  to  vote  and  to  exclude  the  colored 
man.  I  do  not  hesitate  to  say  that  if  that  is  the  result, 
it  is  a  violation  of  the  15th  amendment.  But  these 
grandfather  clauses  have  generally  expired  by  limita- 
tion according  to  their  terms,  and  now  the  method  of 
excluding  the  negro  from  the  ballot  is  to  have  a  law  of 
ineligibility  apply  in  its  terms  equally  to  black  and 
white,  and  to  secure  a  discrimination  in  favor  of  the 
white  by  executing  the  law  rigidly  against  the  black 
and  allowing  the  white  to  vote.  I  deplore  such  methods. 
An  exclusion  of  both  black  and  white  on  the  ground  of 
ignorance  and  irresponsibility,  measured  by  proper 
standards,  is  not  subject  to  criticism  if  impartially  en- 
forced. But  an  unlawful  discrimination  in  the  execu- 
tion of  the  law  is  different  perhaps  in  method,  but  still 
is  fraud,  like  the  original  violence  and  ballot-stuffing  of 
previous  years.  Nevertheless  the  fact  of  the  step  is  a 
good  sign.  It  is  an  indication  that  the  conscience  of 
those  who  have  violated  the  law  is  in  some  measure  being 
stirred,  and  with  the  law  on  the  statute  book  we  may 
reasonably  hope  that  ultimately  the  law  will  come  to  be 
fairly  enforced,  for  we  may  reasonably  hope  that  the 
colored  men  of  the  South,  under  the  influence  of  Booker 
Washington  and  his  supporters,  will  continue  to  go  into 
business,  to  go  on  farms,  to  possess  themselves  of  prop- 
erty and  to  become  respected  members  of  the  communi- 
ties in  which  they  live,  and  when  they  exercise  independ- 
ence of  judgment  in  respect  to  political  issues,  we  may 
be  sure  that  gradually  the  right  to  vote  will  be  accorded 
them  and  they  will  exercise  a  far  more  useful  influence 


228  SOUTHERN  DEMOCRACY  AND 

as  intelligent  and  solid  members  of  the  community  for 
the  benefit  of  their  race  than  the  ignorant  members  of 
their  race  would  have  exercised,  had  they  been  allowed 
to  vote.  In  this  way  through  devious  ways,  which  can 
not  be  justified  or  approved,  we  may  still  reach  a  result 
that  will  square  with  the  requirements  of  the  Federal 
constitution  and  will  give  to  the  negro  every  political 
and  economic  right,  and  will  confer  great  benefit  upon 
the  colored  race. 

The  negro  is  necessary  to  the  South  as  a  laborer — 
skilled  and  unskilled.  The  South  could  not  get  along 
without  him.  The  world  over  to-day  there  is  a  demand 
for  labor,  and  were  the  negro  to  be  withdrawn  from  the 
South  the  difficulties  agriculture  would  labor  under  can 
hardly  be  overstated.  The  negro  is  an  American.  He 
has  no  other  country  than  this,  and  can  have  no  other 
country  than  this,  and  called  upon  to  defend  it  he 
lays  down  his  life  as  freely  as  the  white  man  sacrifices 
his.  Ours  is  the  flag  he  loves — the  only  one  he  knows. 
It  is  our  duty  to  see  to  it  that  his  path  is  made  as  easy 
as  we  can,  that  his  progress  is  as  incessant  as  proper 
encouragement  can  make  it.  His  best  friend,  the  one 
that  can  do  most  for  him  and  the  one  in  many  respects 
who  sympathizes  with  him  most,  is  the  Southern  white 
man.  He  understands  his  defects.  He  knows  his  vir- 
tues. And  if  the  negro  responds  to  the  opportunities 
for  improvement  as  Booker  Washington  points  them 
out,  we  can  be  sure  that  he  will  grow  in  the  estimation 
of  his  white  fellow-citizens  of  the  South,  and  that  the 
great  problem  which  has  burdened  the  South,  with  its 
race  issues,  will  be  largely  solved.  It  is  plain  that  the 
party  of  intelligent  Southerners  who  are  sympathetic 
with  Booker  Washington  and  the  evangel  he  is  preach- 
ing to  his  people  is  growing  in  force  and  influence. 


REPUBLICAN  PRINCIPLES  229 

Propositions  are  made  to  repeal  the  15th  amendment. 
Such  propositions  are  foolish.  The  people  of  this  coun- 
try would  never  consent  to  such  a  retrograde  step.  It 
may  be  that  the  15th  amendment  is  to-day  nullified  in 
many  states.  Nevertheless  it  stands  there  as  a  monu- 
ment and  a  mandatory  restriction  upon  state  laws  and 
as  an  ideal  toward  which  politically  the  South  must 
work.  The  15th  amendment  does  not  require  that  every 
negro  shall  vote.  All  that  is  required  is  that  he 
should  not  be  excluded  from  voting  because  he  is  a 
negro.  If  he  lacks  educational  qualification,  property 
qualification,  or  any  other  qualification  that  the  state 
may  lawfully  impose  as  a  rule  of  eligibility  for  its 
voters,  then  he  may  be  excluded  provided  that  everyone 
else  who  lacks  similar  qualifications  is  equally  excluded. 
The  lt5h  amendment  is  merely  intended  to  secure  him  in 
his  political  rights  from  race  discrimination  by  the 
states.  It  is  not  intended  to  give  him  affirmative  privi- 
leges as  a  member  of  his  race.  Its  strict  enforcement 
does  not  involve  the  amalgamation  of  the  races — does 
not  involve  social  association  or  equality.  It  does  not 
involve  negro  domination,  and  to  permit  the  question  now 
at  this  late  day — forty  years  after  the  war — to  control 
the  votes  of  intelligent  men  in  respect  of  issues  that  are 
living  and  that  affect  their  welfare,  is  to  indicate  on 
their  part  a  lack  of  sense  of  proportion  which  I  can 
not  think  will  continue  to  manifest  itself  among  the 
voters  of  the  South.  If  only  under  the  influence  of 
President  Roosevelt's  administration  some  of  the  South- 
ern states,  including  Kentucky,  could  be  led  into  the 
Republican  column  in  accordance  with  the  real  sym- 
pathies of  the  voters  of  those  states,  it  would  be  a  crown- 
ing glory  of  his  administration.  It  will  not  necessarily 
work  for  the  benefit  of  the  Republican  party  in  the  end, 


230  SOUTHERN  DEMOCRACY  AND 

because  the  closeness  with  which  the  Southern  states 
have  united  in  support  of  Democratic  candidates  and 
the  Democratic  party  has  introduced  a  similar  cohesion 
among  the  Northern  states  and  we  might  expect  much 
more  independence  of  voting  at  the  North  if  the  voters 
there  were  not  confronted  with  the  solidarity  of  the 
South.  As  an  American  citizen  and  lover  of  my  coun- 
try, however,  I  long  for  the  time  when  the  South  shall 
be  received  again  into  the  councils  of  the  nation,  and 
when  the  people  of  that  section  shall  resume  the  influ- 
ence to  which  they  are  entitled  and  which  they  them- 
selves deny  themselves  by  being  frightened  at  a  mere 
ghost  of  the  past. 

It  may  be  said  that  when  I  say  the  South  denies  it- 
self the  opportunity  to  take  part  to  influence  the  course 
of  the  Government  and  to  determine  its  policies,  I  ignore 
the  fact  that  by  the  oppression  of  the  negro  vote,  the 
white  Democrats  of  the  South  in  point  of  representa- 
tion in  the  Senate,  and  in  the  House  per  capita,  wield 
a  far  greater  influence  on  the  legislation  of  the  country 
than  do  the  Northern  voters  per  capita,  because  in  the 
representation  they  get  the  benefit  in  the  proportion 
of  all  their  colored  adults  over  twenty-one,  while  they 
exclude  them  from  exercising  the  ballot.  This  is  true 
and  it  is  an  injustice;  but  the  very  injustice  leads  many 
a  Northern  voter  to  support  the  Republican  party  and 
to  keep  it  in  control,  and  thus  prevent  the  Southern 
states,  following  as  they  do  the  Democratic  party,  from 
taking  any  part  in  the  executive  control  of  the  Govern- 
ment or  to  exercise  any  substantial  influence. 

Why  should  not  the  Democratic  voters  of  Kentucky 
who  really  sympathize  with  Theodore  Roosevelt  and  his 
policies,  come  into  the  Republican  party  and  uphold  the 
standard  which  he  carries?     What  is  there  about  his 


REPUBLICAN  PRINCIPLES  231 

policies  that  they  do  not  approve?  Let  us  examine  as 
between  him  and  Mr.  Bryan,  who  represents  the  Democ- 
racy to-day.  First,  do  they  believe  that  the  tariff  is 
a  robbery  of  the  many  for  the  enrichment  of  the  few? 
Do  they  think  it  is  wiser  to  destroy  our  present  business 
prosperity,  which  has  as  its  basis  the  protective  tariff 
system?  If  so,  then  they  are  right  to  continue  to  vote 
with  Mr.  Bryan ;  although  it  will  probably  be  found, 
should  Mr.  Bryan  come  into  office  with  a  Democratic 
House  and  Senate  behind  him,  that  a  tariff  bill  pro- 
duced by  a  Democratic  House  and  Democratic  Senate, 
to  be  signed  by  a  Democratic  President,  would  be  just 
such  another  botch  as  was  the  Gorman-Wilson  tariff  bill, 
a  hybrid  which  was  neither  real  protection  nor  real  free 
trade,  and  was  only  productive  of  disaster  to  the  busi- 
ness interests  of  the  country. 

Then  let  us  take  the  question  of  our  policy  with  our 
dependent  possessions,  including  Porto  Rico,  Cuba  and 
the  Philippines.  As  to  Porto  Rico  there  is  not  much 
question  except  as  to  whether  we  shall  bring  a  million 
people  of  that  island  into  our  political  system  so  as  to 
make  them  citizens  and  ultimately  make  them  a  state 
and  give  them  two  senators  and  an  appropriate  number 
of  representatives.  Upon  that  question  neither  party 
has  spoken  and  I  do  not  know  that  any  issue  is  raised. 
With  respect  to  Cuba  there  seems  to  be  no  dispute,  and 
that  it  is  our  duty  to  go  ahead  and  prepare  the  island 
for  peaceful  government  and  turn  it  back  to  the  repub- 
lic, the  functions  of  which  are  temporarily  suspended. 

Coming  then  to  the  Philippines,  there  we  do  have  a 
sharply  drawn  issue  between  Mr.  Bryan  and  Mr.  Roose- 
velt, and  upon  that  issue  I  venture  to  say  that  men  of 
the  South  are  largely  with  Mr.  Roosevelt.  In  the 
Spanish- American  War,  which  was  brought  about  quite 


232  SOUTHERN  DEMOCRACY  AND 

as  much  by  the  earnest  sympathy  of  the  South  as  by  the 
feelings  of  the  Republicans  of  the  North,  we  were  car- 
ried by  the  exigencies  of  battle  to  the  Philippine  Islands 
and  almost  before  we  knew  it.  By  Dewey's  victory  and 
what  followed  we  were  put  in  a  position  that  required 
us  to  decide,  whether  having  fought  with  the  Filipinos  as 
allies  against  Spain  in  a  war  to  free  them  from  what 
they  regarded  as  oppression  by  Spain,  we  should 
thereafter  agree  with  Spain  to  turn  them  back  to  that 
same  sovereignty.  That  seemed  treachery  to  an  ally. 
Consequently  could  we  turn  the  islands  over  to  the  in- 
surgents with  whom  we  had  been  fighting  as  allies? 
They  had  nothing  but  a  military  government,  and  that 
in  the  four  or  five  months  when  they  exercised  any  power 
had  proven  to  be  a  colossal  failure,  in  which  the  tyrannies 
were  quite  as  great  as  they  were  in  the  Spanish  times. 
Aguinaldo  and  his  government  were  utterly  unable  to 
give  security  of  peace,  law  and  order  to  the  three  hun- 
dred islands  with  their  population  of  8,000,000.  In 
the  interests  of  the  people  themselves  it  was  absolutely 
necessary  that  we  should  take  the  other  alternative, 
establish  a  government  in  the  Islands  ourselves  and  at- 
tempt to  teach  the  people  something  of  the  principles  of 
self-government  in  order  that  ultimately  we  may  be  able, 
if  they  desire,  to  turn  over  the  government  to  them.  Mr. 
Bryan  asserts  that  the  Filipinos  are  entirely  capable 
of  self-government  and  ought  to  be  permitted  to  con- 
trol the  Islands,  however  ignorant,  however  lacking  in 
political  experience  they  may  seem  to  be.  Now  I  submit 
to  you,  and  I  submit  to  the  whole  Southern  people, 
whether  we  can  safely  trust  a  people,  the  great  majority 
of  whom  are  without  political  experience,  to  govern 
themselves  and  produce  a  modern  civilization.  Can  we 
avoid  the  trust  which  has  been  thrust  upon  us?     Can 


REPUBLICAN  PRINCIPLES  233 

we  avoid  the  responsibility  which  is  ours  by  reason  of 
fate  and  say  to  these  people,  "  Take  over  your  govern- 
ment ;  you  have  had  no  experience ;  you  can  begin  your 
factional  guerrilla  warfares  and  we  will  move  out  of  the 
Islands."  Is  there  not  an  obligation  on  the  part  of 
a  great,  rich,  intelligent  and  capable  nation  like  ours, 
when  fortune  has  thrust  us  into  control  of  8,000,000 
of  people  like  these,  to  establish  a  government  in  which 
law  and  order  shall  be  preserved  and  in  which  the  rights 
of  the  humblest  may  be  maintained  and  to  remain  there 
until  we  can  be  certain  of  its  continuance?  Were  we  to 
leave,  there  is  every  prospect  that  tyranny  would  be  re- 
introduced and  there  would  only  be  class  government, 
and  that  the  uplifting  of  the  people  would  cease.  The 
principles  of  the  Declaration  of  Independence  do  not 
require  the  immediate  surrender  of  a  country  to  a  people 
like  this.  If  they  did,  then  it  would  be  utterly  impos- 
sible to  defend  rules  which  exclude  women  from  the  bal- 
lot, rules  which  exclude  minors  from  the  ballot,  rules 
which  exclude  ignorant  and  irresponsible  male  adults 
from  the  ballot.  Do  the  people  of  the  South  contend 
that  the  difficult  science  of  self-government  is  so  im- 
planted in  the  breast  of  every  human  being,  be  he 
Hottentot,  Esquimaux  or  any  of  the  uncivilized  races, 
or  even  one  of  those  partly  civilized  or  those  having  no 
experience  in  government,  that  he  ought  not  to  be  as- 
sisted in  the  maintenance  of  a  government  which  shall 
secure  law  and  right?  We  are  engaged  in  a  great  al- 
truistic work  in  the  Philippines.  We  promised  that 
we  would  gradually  increase  their  measure  of  self-gov- 
ernment as  they  might  show  themselves  fit,  that  we  would 
lead  them  on  and  on  in  this  direction,  and  the  necessary 
inference  is  that  ultimately  when  they  became  fit  for 
self-government,  if  they  desire,  then  they  shall  have  it. 


234  SOUTHERN  DEMOCRACY  AND 

But  to  throw  them  out  now  upon  the  world  entirely  in- 
capable of  maintaining  permanently  a  government  in 
which  law  and  order  shall  be  supported,  would  be  to  run 
away  from  the  plain  duty  of  a  nation  conducted  on  the 
principles  of  Christian  civilization. 

We  have  been  in  the  Philippines  now  nearly  ten  years. 
For  four  years  we  were  engaged  in  suppressing  the 
disorder  due  to  two  insurrections  and  the  Spanish- 
American  War.  Since  that  time  we  have  been  slowly 
laboring  against  the  burdens  which  have  come  upon  the 
people  both  from  war  and  also  from  famine  and  pesti- 
lence and  the  destruction  of  their  one  instrument  of  agri- 
culture— the  water  buffalo.  Gradually  we  can  see  im- 
provement in  the  business  of  the  islands.  Gradually  we 
can  see  the  restoration  of  all  the  conditions  favorable  to 
a  prosperous  future.  If  we  can  only  open  to  the  mar- 
kets of  the  United  States  the  products  of  those  Islands, 
it  will  greatly  aid  them  without  in  the  slightest  degree 
injuring  the  similar  agricultural  interests  of  the  United 
States,  and  ultimately  doubtless  we  shall  come  to  this. 
The  more  generously  we  treat  the  Islands,  the  more 
carefully  we  look  after  their  interests,  the  more  will  be 
our  reward  in  the  matter  of  growth  of  commerce  be- 
tween the  two  countries,  and  the  more  satisfactory  will 
be  our  contemplation  of  the  policy  of  altruism  which  we 
shall  have  pursued  in  reference  to  a  generous,  graceful, 
light-hearted  Oriental  Christian  people. 

Thirdly,  how  with  reference  to  railway  regulations? 
Do  you  favor  Mr.  Bryan's  policy  or  do  you  favor  Mr. 
Roosevelt's?  Mr.  Bryan  wishes  to  purchase  all  the  in- 
terstate railways  of  the  nation,  some  230,000  miles  in 
extent,  costing  upward  to  the  nation  of  $14,000,000,- 
000,  and  to  operate  them  as  a  government  institution. 
Shades  of  Thomas  Jefferson !     Think  of  what  he  would 


REPUBLICAN  PRINCIPLES  235 

have  said  of  such  an  accumulation  of  power  in  the 
executive  of  his  republic.  Even  a  man  of  the  dullest 
imagination  trembles  at  the  thought  of  the  power  which 
the  executive  might  exercise  with  that  instrument  under 
his  control.  And  why  does  Mr.  Bryan  favor  Govern- 
ment ownership?  It  is  because  he  thinks  that  the 
tribunal  appointed  to  regulate  the  railroads — the 
interstate  commerce  commission — must  necessarily  come 
under  the  influence  and  domination  of  the  railways  of 
the  country.  In  other  words,  he  does  not  believe  in  the 
possibility  of  securing  individuals  who  are  able,  cour- 
ageously, and  with  an  eye  single  to  the  interests  of  the 
republic,  to  administer  and  enforce  the  laws  and  regula- 
tions with  reference  to  the  wholesome,  just  and  efficient 
conduct  of  the  railways  of  this  country.  It  is  a  great 
arterial  system.  When  it  is  poisoned,  when  it  is  con- 
ducted dishonestly,  when  there  is  discrimination  against 
it,  then  the  person  or  the  locality  against  whom  that 
discrimination  is  exercised,  is  palsied  and  withered.  It 
is  a  great  trust  that  railways  by  the  enjoyment  of  the 
franchise  of  public  transportation  take  over  and  exer- 
cise, and  it  is  essential  that  they  should  discharge  that 
trust  honestly  and  impartially  to  all  individuals  and 
localities.  Mr.  Roosevelt  believes  in  the  individual.  He 
believes  that  it  is  possible  under  our  system  to  select 
men  who,  courageous,  brave,  free  from  the  influence  of 
the  power  of  money,  will  discharge  the  functions  placed 
upon  them  and  see  to  it  that  the  public  interests  are 
conserved.  Now  are  you  with  Mr.  Bryan  or  against 
him,  or  are  you  with  Mr.  Roosevelt  or  against  him?  I 
need  not  ask  the  question,  for  I  know  that  in  this  State 
of  Kentucky  a  majority  of  the  Democrats  on  this  point 
are  with  Mr.  Roosevelt.  Why  then  should  not  they 
vote  their  sentiments? 


236  SOUTHERN  DEMOCRACY  AND 

Upon  the  question  of  trusts  how  is  it?  Mr.  Bryan 
uses  a  great  deal  of  rhetoric  in  connection  with  the 
trusts.  He  would  extirpate  and  root  them  out.  Now 
what  is  a  trust?  A  trust  is  a  great  combination  of 
capital  in  manufacturing  plants  which  produce  a  large 
part  of  the  product  of  any  particular  line  of  mer- 
chandise. If  by  trusts  you  mean  an  illegal  trust  or  if 
the  term  is  to  be  taken  as  an  illegal  combination,  then 
the  definition  should  be  extended.  It  means  a  large 
combination  of  capital  for  the  production  of  any  com- 
modity in  which  the  combiner  aims  by  reason  of  the  ex- 
tent of  the  plant  and  by  methods  of  duress  to  drive  out 
competition  and  to  monopolize  the  trade.  Now  com- 
bination is  the  law  of  being  of  our  present  business 
community.  A  machine  for  manufacturing  that  which 
was  made  by  hand  before  is  formed  by  the  assembling 
of  many  parts,  and  by  the  joint  action  of  all  of  them 
the  more  rapid,  and  generally  the  more  efficient,  manu- 
facture of  the  article  in  question  is  secured.  Always  it 
is  more  economical  than  hand  production.  So  the  com- 
bination of  capital  is  a  means  of  reducing  the  cost  of 
production,  so  that  the  lowered  expense  results  in  much 
of  the  enormous  strides  that  we  have  made  in  our  com- 
mercial and  manufacturing  life.  The  public  can  no 
more  dispense  with  it,  and  the  government  has  no  more 
right  to  suppress  it,  than  any  other  good  movement  in 
other  useful  means  of  profit.  Combination  is  what  en- 
ables the  laborer  to-day  to  secure  the  proper  measure 
of  the  joint  profit  between  him  and  the  capitalist.  He 
unites  with  his  fellows  in  the  trades  unions,  lays  up 
money  to  be  used  in  times  of  stress  when  in  the  constant 
and  necessary  recurring  strife  between  labor  and  capi- 
tal for  a  division  of  the  joint  profit,  he  may  support 
himself  or  his  fellows  in  temporary  idleness.     The  spirit 


REPUBLICAN  PRINCIPLES  237 

of  combination  has  created  these  enormous  trades 
unions,  which  wield  a  power  for  good  that  can  hardly 
be  over-estimated.  And  yet  the  Government  has  no 
more  business  to  suppress  combination  of  capital  than 
it  has  combination  of  labor,  and  the  Government  will 
never  suppress  either  as  long  as  the  enormous  power 
which  each  uses  is  confined  within  the  limits  of  lawful- 
ness and  is  not  perverted  to  deprive  men,  communities, 
or  the  public,  of  that  which  should  be  theirs.  But 
when  combinations  of  capital  are  used  not  alone  to  pro- 
duce economy  in  production  but  methods  are  adopted 
and  devised  by  which  the  combination  drives  out  of 
business  smaller  concerns  engaged  in  competition,  or 
uses  devices  by  which  customers  are  compelled  to  deal 
with  the  combination  and  abandon  their  smaller  com- 
petitors— that  is,  when  they  introduce  an  element  of 
coercion  into  the  business,  it  becomes  a  trust,  and  an 
unlawful  trust.  Now,  the  question  is  whether  that 
trust  shall  be  destroyed,  whether  the  parts  of  it  shall  be 
disassembled  and  we  shall  go  back  to  the  single  fac- 
tories, or  whether  the  leaders  of  that  trust  shall  be 
punished  for  violating  the  law  and  required  by  such 
punishment  and  by  injunction  to  return  to  the  lawful 
administration  of  their  business  and  to  confine  them- 
selves to  a  legitimate  form  of  competition  and  to 
the  maintenance  of  their  prestige  in  business  by 
reducing  the  cost  of  production  and  sharing  that 
cost  with  the  public  in  reduced  prices.  If  Mr.  Bryan 
can  be  believed,  he  is  in  favor  of  driving  them  all 
out  of  business.  Mr.  Roosevelt  is  in  favor  of  punish- 
ing them,  of  eliminating  lawlessness  and  maintaining 
the  useful  combination.  On  which  side  of  that  ques- 
tion are  the  Democrats  of  the  South  going  to  range 
themselves  ? 


238  SOUTHERN  DEMOCRACY  AND 

Mr.  Roosevelt  is  in  favor  of  a  large  navy.  He  is  in 
favor  of  a  navy  commensurate  to  the  size  of  the  coun- 
try, so  that  no  country  may  insult  us  or  offend  our 
dignity  or  subject  us  with  impunity  to  a  course  which 
we  otherwise  would  not  take.  In  other  words,  he  is  in 
favor  of  a  navy  to  keep  the  peace.  He  would  be  mild 
in  manner  and  sweet  in  disposition,  but  he  would  have 
it  understood  that  his  anger  could  be  aroused,  and  when 
aroused  that  he  knew  how  to  strike  and  had  the  means 
withal  to  strike  effectively.  Mr.  Bryan,  if  I  under- 
stand him,  would  have  no  navy,  but  he  would  have  a 
navy  that  was  prepared  over  night.  We  should  be  in 
a  pusillanimous  position — one  in  which  we  could  effect 
no  good. 

We  have  not  yet  reached  the  millennium  when  every- 
thing is  to  be  settled  by  arbitration  and  by  peaceful 
influence.  We  are  not  looking  out  into  the  world  for 
conquests  or  exploitations.  We  are  not  seeking  to  take 
anything  which  is  not  ours.  We  are  not  seeking  to  de- 
prive any  nation  of  what  is  its  own ;  but  in  international 
life  there  is  a  great  opportunity  for  the  exerting  of  a 
peaceful,  moral  influence  among  nations.  A  nation  of 
80,000,000  people  should  not  hesitate  to  prepare  itself, 
to  make  its  healthful  influence  as  effective  as  possible. 
And  I  don't  care  whether  you  are  a  member  of  the 
strictest  peace  society,  or  whatever  your  principles,  if 
you  answer  yourself,  deep  down  in  your  heart  truth- 
fully, you  know  that  a  nation  that  is  able  to  defend  it- 
self, a  nation  whose  coast  is  properly  protected  for  the 
resistance  of  modern  war  attacks,  and  whose  navy  is  a 
formidable  fleet  of  modern  ironclads,  exerts  much  more 
influence  to  secure  justice  than  the  nation  whose  defenses 
are  to  be  improvised  in  a  week,  whose  navy  is  to  be  con- 
structed of  shallops  and  swivel  guns  or  converted  mer- 


REPUBLICAN  PRINCIPLES  239 

chantmen.  Are  you  with  Mr.  Bryan  or  are  you  with 
Mr.  Roosevelt  on  that  issue? 

Finally,  Mr.  Bryan  wishes  to  have  the  judges  of  all 
the  Federal  Courts  elected.  He  wishes  to  take  away  the 
power  to  issue  injunctions,  conferred  upon  the  courts  as 
perhaps  their  most  effective  arm  to  bring  about  justice, 
and  all  because  he  does  not  think  men  can  be  found 
capable  of  wielding  the  power  necessary  to  make  an  effi- 
cient government  and  necessary  to  make  an  efficient 
court,  without  running  the  risk  of  having  them  cor- 
rupted by  the  influence  of  wealth  and  the  influence  of 
corporations.  Mr.  Roosevelt  believes  that  it  is  possible 
and  necessary  if  we  have  government  at  all  to  have  a 
government  strong  enough,  efficient  enough,  and  with 
power  enough,  to  make  both  wealthy  and  poor  obey  the 
law.  And  under  the  combinations  that  we  have  to-day 
of  labor  unions  on  the  one  hand,  and  wealth  and  capital 
on  the  other,  if  we  would  keep  them  both  within  the  law, 
in  exercising  their  enormous  power,  we  must  have  courts 
that  are  to  be  strengthened  and  not  weakened.  And  if 
we  can  not  find  the  public  agents  in  our  individuals  who 
can  exercise  that  government  power  without  danger, 
then  we  might  as  well  go  out  of  the  governing  busi- 
ness. Mr.  Bryan  would  create  a  favorite  class  of  law- 
less workingmen.  Mr.  Roosevelt  would  have  no  fa- 
vorites, but  would  treat  the  wealthy  and  the  poor  alike, 
and  would  bring  them  within  the  control  of  the  law. 
Are  you  with  Mr.  Roosevelt  or  are  you  with  Mr.  Bryan 
on  that  issue? 

Now  I  am  aware  that  it  is  said  that  Mr.  Bryan  is  not 
the  Democratic  party,  and  that  the  Democratic  party 
is  not  Mr.  Bryan.  Your  own  distinguished  fellow- 
citizen,  Mr.  Henry  Watterson,  is  engaged  in  giving  out 
at  various  times  most  interesting  views  on  public  ques- 


240  SOUTHERN  DEMOCRACY 

tions  which  assume  that  there  is  a  difference  between 
what  Mr.  Bryan  thinks  and  what  the  Democratic  party 
thinks.  But  everybody  knows  that  Mr.  Bryan  is  to  be 
the  next  candidate  for  the  Presidency,  and  that  Mr. 
Bryan's  influence  is  controlling  in  the  Democratic  party, 
and  that  what  he  thinks  makes  up  the  real  platform  of 
the  party.  Now  I  know  the  Democrats  of  the  South 
many  of  them  have  no  sympathy  whatever  with  the 
principles  that  actuate  Mr.  Bryan.  And  I  say  to  them 
as  courageous  men  who  can  look  situations  square  in  the 
face,  are  they  longer  to  permit  themselves  to  be  led  at 
the  tail  of  the  wagon,  pursuing  a  course  with  which 
they  have  no  sympathy  merely  because  of  the  traditions 
of  the  past  and  a  ghost  of  a  former  issue? 

They  have  an  opportunity  in  the  present  election  to 
make  an  effective  Declaration  of  Independence.  The 
Democratic  party  is  hopelessly  divided  by  the  ar- 
bitrary conduct  of  an  iron  machine  and  the  time  is  ripe 
for  a  change.  The  Republican  party  has  nominated  a 
strong  ticket.  Mr.  Willson,  the  candidate  for  Gov- 
ernor, a  member  of  the  Bar  of  high  standing,  of  great 
ability  and  representing  the  best  elements  of  Republi- 
canism in  the  state,  may  well  command  your  suffrages 
because  you  may  be  confident  that  he  will  make  a  digni- 
fied, honest,  courageous  and  efficient  governor  of  the 
commonwealth.  His  colleagues  on  the  ticket  should 
appeal  to  you  in  the  same  way.  Now  is  the  accepted 
hour  to  break  away  from  the  dead  bonds  of  the  past 
and  range  yourself  under  the  banner  of  the  party  of 
progress,  efficiency  and  reform  under  the  leadership  of 
Theodore  Roosevelt. 


LABOR  AND  CAPITAL 

DELIVERED    BEFORE    THE    COOPER    INSTITUTE,    NEW    YORK 
CITY,  FRIDAY,  JANUARY  10,   1908 

Ladies  and  Gentlemen  :  I  am  going  to  ask  your  atten- 
tion to-night  to  the  subject  of  labor  and  capital,  their 
common  interest,  their  necessary  controversies,  their 
lawful  acts  and  the  legal  remedies  for  their  abuses. 

ORIGIN   OF   INSTITUTION    OF    PROPERTY 

Looking  back  to  a  time  when  society  was  much  ruder 
and  simpler,  we  can  trace  the  development  of  certain 
institutions  that  have  come  to  be  the  basis  of  modern 
civilization.  We  can  hardly  conceive  the  right  of  per- 
sonal liberty  without  private  property,  because  involved 
in  personal  liberty  is  the  principle  that  one  shall  enjoy 
what  his  labor  produces.  Property  and  capital  were 
first  accumulated  in  implements,  in  arms  and  personal 
belongings,  the  value  of  which  depended  almost  wholly 
on  the  labor  in  their  making.  As  man's  industry  and 
self-restraint  grew,  he  produced  by  his  labor  not  only 
enough  for  his  immediate  necessities,  but  also  a  surplus, 
which  he  saved  to  be  used  in  aid  of  future  labor.  By 
this  means  the  amount  which  each  man's  labor  would 
produce  was  thereafter  increased.  There  followed  at 
length  the  corollary  that  he  whose  savings  from  his  own 
labor  had  increased  the  product  of  another's  labor  was 
entitled  to  enjoy  a  share  in  the  joint  result,  and  in  the 
fixing  of  these  shares  was  the  first  agreement  between 
labor  and  capital.  The  certainty  that  a  man  could 
enjoy  as  his  own  that  which  he  produced  or  that  which 
he  saved,  and  so  could  dispose  of  it  to  another,  was  the 

241 


242  LABOR  AND  CAPITAL 

institution  of  private  property  and  the  strongest  motive 
for  industry  beyond  that  needed  merely  to  live. 

This  is  what  has  led  to  the  accumulation  of  capital  in 
the  world.  It  is  the  mainspring  of  human  action  which 
has  raised  man  from  the  barbarism  of  the  early  ages  to 
modern  civilization.  Without  it  he  would  still  be  in  the 
alternating  periods  of  starvation  and  plenty,  and  no 
happiness  but  that  of  gorging  unrestrained  appetite. 
Capital  increased  the  amount  of  labor's  production  and 
reduced  the  cost  in  labor  units  of  each  unit  produced. 
The  cheaper  the  cost  of  production,  the  less  each  one 
had  to  work  to  earn  the  absolute  necessities  of  life,  and 
the  more  time  he  had  to  earn  its  comforts.  And  as  the 
material  comforts  increased,  the  more  possible  became 
happiness  and  the  greater  the  opportunity  for  the  culti- 
vation of  the  higher  instincts  of  the  human  mind  and 
soul. 

ALL   BENEFITED   BY  INCREASE   OF   CAPITAL 

It  would  seem,  therefore,  to  be  plainly  for  the  benefit 
of  everyone  to  increase  the  amount  of  capital  in  use  in 
the  world,  and  this  can  only  be  done  by  maintaining 
the  motive  for  its  increase. 

SECURITY  OF   CAPITAL   GREAT   BENEFIT  TO   LABOR 

Labor  needs  capital  to  secure  the  best  production, 
while  capital  needs  labor  in  producing  anything.  The 
share  of  each  laborer  in  the  joint  product  is  affected  not 
exactly,  but  in  a  general  way,  by  the  amount  of  capital 
in  use  as  compared  with  the  number  of  those  who  labor. 
The  more  capital  in  use  the  more  work  there  is  to  do,  and 
the  more  work  there  is  to  do  the  more  laborers  are 
needed.  The  greater  the  need  for  laborers  the  better 
their  pay  per  man.      Manifestly,  it  is  in  the  direct  in- 


LABOR  AND  CAPITAL  248 

terest  of  the  laborer  that  capital  shall  increase  faster 
than  the  number  of  those  who  work.  Everything,  there- 
fore, which  legitimately  tends  to  increase  the  accumula- 
tion of  wealth  and  its  use  for  production  will  give  each 
laborer  a  larger  share  of  the  joint  result  of  capital  and 
labor.  It  will  be  observed  that  the  laborer  derives  little 
or  no  benefit  at  all  from  wealth  which  is  not  used  for 
production.  Nothing  is  so  likely  to  make  wealth  idle  as 
insecurity  of  invested  capital  and  property.  It  follows, 
as  a  necessary  conclusion,  that  to  destroy  the  guaran- 
ties of  property  is  a  direct  blow  at  the  interest  of  the 
workingman. 

The  last  two  generations  have  witnessed  a  marvelous 
material  development.  It  has  been  effected  by  the  as- 
sembling and  enforced  cooperation  of  simple  elements 
that  previously  had  been  separately  used.  The  organ- 
ization of  powerful  machines  or  of  delicate  devices  by 
which  the  producing  power  of  one  man  was  increased 
fifty  or  one  hundred  fold  was,  however,  not  the  only  step 
in  this  great  progress.  Within  the  limits  of  efficient 
administration,  the  larger  the  amount  to  be  produced 
at  one  time  and  under  one  management  the  less  the  ex- 
pense per  unit.  Therefore  the  aggregation  of  capital, 
the  other  essential  element  with  labor  in  producing  any- 
thing, became  an  obvious  means  of  securing  economy 
in  the  manufacture  of  everything.  Corporations  had 
long  been  known  as  convenient  commercial  instruments 
for  wielding  combinations  of  capital.  Charters  were  at 
first  conferred  by  special  act  upon  particular  indi- 
viduals and  with  varying  powers,  but  so  great  became 
the  advantage  of  incorporation,  with  the  facility  af- 
forded for  managing  great  corporations,  and  the  limita- 
tion of  the  liability  of  investors,  that  it  was  deemed 
wise  in  this  country,  in  order  to  prevent  favoritism,  to 


244  LABOR  AND  CAPITAL 

create  corporations  by  general  laws,  and  thus  to  afford 
to  all  who  wished  it  the  opportunity  of  assuming  a 
corporate  character  in  accordance  therewith. 

The  result  was  a  great  increase  in  the  number  of  the 
corporations  and  the  assumption  of  the  corporate  form 
by  seven-eighths  of  the  active  capital  of  the  country. 
For  a  long  time  it  was  contended  that  the  introduction 
of  machines  to  save  labor  would  work  an  injury  to  those 
who  made  things  by  hand,  because  it  enabled  the  capi- 
talist to  reduce  the  number  of  hands  that  he  employed. 
The  argument  was  a  strong  one,  but  the  result  has 
shown  that  it  was  erroneous  in  that  it  did  not  take  into 
account  two  things — first,  that  the  saving  made  by 
machinery  so  increased  the  profit  on  the  capital  and 
thus  made  so  much  new  capital  that  while  the  demand 
for  labor  in  one  factory  or  business  was  reduced,  the 
number  of  businesses  and  factories  grew  so  that  on  the 
whole  the  demand  for  labor  increased  greatly ;  and,  sec- 
ond, the  use  of  machinery  so  reduced  the  cost  of  produc- 
tion and  price  of  both  the  necessities  and  comforts  of 
life  that  the  laborer's  wages  in  money  were  given  a  sub- 
stantial increase  in  purchasing  power. 

PANIC  SHOWS  LABOR'S  INTEREST  IN  WELFARE  OF   CAPITAL 

What  has  been  said,  it  seems  to  me,  shows  clearly 
enough  that  the  laborer  is  almost  as  keenly  interested  in 
having  capital  increase  as  the  capitalist  himself.  As 
already  said,  anything  that  makes  capital  idle,  or  which 
reduces  or  destroys  it,  must  reduce  both  wages  and  the 
opportunity  to  earn  wages.  It  only  requires  the  effects 
of  a  panic  through  which  we  are  passing,  or  through 
which  we  passed  in  1893  or  1878,  to  show  how  closely 
united  in  a  common  interest  we  all  are  in  modern  so- 
ciety.    We   are  in   the   same   boat,   and   financial   and 


LABOR  AND  CAPITAL  245 

business  storms  which  affect  one  are  certain  to  affect  all 
others.  It  was  not  so  much  so  in  olden  times,  when  the 
population  was  scattered,  and  when  each  family  sup- 
plied almost  all  of  its  own  wants,  when  it  raised  its  food 
on  the  farm  and  made  its  clothes  in  the  winter,  and  de- 
pended but  little  on  what  it  sold,  and  bought  practically 
nothing.  Now  we  live  in  a  society  that  is  strictly  co- 
operative.  Destroy  the  buildings  of  a  city  like  San 
Francisco  by  an  earthquake,  and  then  learn  the  com- 
plete dependence  that  all  the  urban  population  has  upon 
the  rest  of  the  country  for  more  than  a  week's  life.  As 
the  population  increases,  as  the  cost  of  production  for 
our  necessities  and  comforts  is  reduced  by  having  them 
made  in  great  quantities,  and  at  a  low  price,  we  be- 
come dependent  on  the  working  of  this  cooperative  mech- 
anism to  such  a  point  that  a  clog  in  any  of  the  wheels 
which  stops  them  causes  stagnation  and  disaster. 

Therefore,  to  come  back  to  my  original  proposition, 
the  laboring  man  should  be  the  last  to  object  to  the 
rapid  accumulation  of  capital  in  the  hands  of  those  who 
use  it  for  the  reproduction  of  capital.  The  thoughtful 
and  intelligent  laborer  has  therefore  no  feeling  of  hos- 
tility  toward  combinations  of  capital  engaged  in  lawful 
business  methods. 

The  capitalist,  however  wealthy,  who  is  willing  to  de- 
vote his  nights  and  days  to  the  investment  of  his  capital 
in  profitable  lawful  business  or  manufacture,  and  who 
studies  methods  of  reducing  the  cost  of  production  and 
economizing  expenses  therein,  should  be  regarded  with 
favor  by  the  workingman,  because,  while  his  motive 
is  merely  one  of  accumulation,  he  is  working  not  only 
for  himself  but  for  labor  and  for  society  at  large.  The 
inventors  on  the  one  hand,  and  the  men  of  judgment, 
courage  and  executive  ability,  who  have  conceived  and 


246  LABOR  AND  CAPITAL 

executed  the  great  lawful  enterprises,  on  the  other,  have 
reaped  princely  profits,  which  the  world  may  well  ac- 
cord them  for  the  general  good  they  have  done.  The 
wealth  they  accumulated  is  not  wrested  from  labor,  but 
it  is  only  a  part  of  that  which  has  been  added  to  the 
general  stock  by  the  ingenuity,  industry,  judgment  and 
ability  of  those  who  enjoy  it.  If,  with  the  growth  in 
the  population,  the  condition  of  man  is  to  improve,  new 
plans  for  the  use  of  capital  to  better  advantage  must  be 
devised,  which  shall,  at  the  same  time,  increase  capital 
more  rapidly  than  the  population  and  reduce  the  cost 
of  living. 

What  has  been  said  should  not  be  misunderstood. 
The  men  who  have  by  economic  organization  of  capital 
at  the  same  time  increased  the  amount  of  the  country's 
capital,  increased  the  demand  and  price  for  labor  and 
reduced  the  cost  of  necessities,  are  not  philanthropists. 
Their  sole  motive  has  been  one  of  gain,  and  with  the 
destruction  of  private  property  that  motive*  would  dis- 
appear, and  so  would  the  progress  of  society.  The  very 
advantage  to  be  derived  from  the  security  of  private 
property  in  our  civilization  is  that  it  turns  the  natural 
selfishness  and  desire  for  gain  into  the  strongest  motive 
for  doing  that  without  which  the  upward  development 
of  mankind  would  cease  and  retrogression  would  begin. 

FAIR   LAWS  FOR   CAPITAL  SHOULD   BE   FAVORED   BY  LABOR 

It  is  greatly  in  the  interest  of  the  workingman,  there- 
fore, that  corporate  capital  should  be  fairly  treated. 
Any  injustice  done  to  it  acts  directly  upon  the  wage- 
earners  who  must  look  to  corporate  wealth  for  their 
employment.  Take  the  large  body  of  railroad  em- 
ployees. Any  drastic  legislation  which  tends  unjustly 
to  reduce  the  legitimate  earnings  of  the  railroad  must 


LABOR  AND  CAPITAL  247 

in  the  end  fall  with  heavy  weight  upon  the  employees 
of  that  railroad,  because  the  manager  will  ultimately 
turn  toward  wages  as  the  place  where  economy  can  be 
effected.  So  in  respect  to  taxation,  if  the  corporation 
is  made  to  bear  more  than  its  share  of  the  public  bur- 
dens, it  reacts  directly,  first,  upon  its  stockholders,  and 
then  upon  its  employees.  In  the  election  of  1896,  when 
the  cry  was  for  free  silver,  a  great  many  wage-earners 
in  that  campaign  of  education  were  enabled  to  see  that 
while  the  serious  impairment  of  the  standard  value  by 
going  on  to  a  free-silver  basis  might  work  advantage- 
ously for  the  debtor  class,  the  laboring  man  belonged  to 
the  creditor  class.  The  wage-earners  had  no  debts  of 
any  amount  to  pay ;  they  were  benefited  by  having  their 
wages  paid  in  the  best  currency  possible ;  and  they  were 
directly  interested  that  their  employers  with  capital 
should  collect  the  debts  due  them  in  the  same  medium  in 
which  those  debts  had  been  contracted.  The  truth  was 
that  the  wage-earners  were  in  effect  part  of  the  moneyed 
classes  of  this  country  in  the  sense  that  their  interest 
and  that  of  the  capitalist  were  identically  the  same  in 
requiring  the  honest  payment  of  debts. 

We  are  suffering  now  from  a  panic.  It  was  brought 
on,  in  my  judgment,  by  the  exhaustion  of  free  capital 
the  world  over,  by  the  lack  of  an  elastic  system  of  cur- 
rency and  also  by  a  lack  of  confidence  in  our  business 
fabric  produced  in  Europe  through  the  revelations  in 
certain  great  corporations  of  business  dishonesty,  cor- 
ruption and  unlawfulness.  It  had  been  necessary  for 
us  to  purify  some  of  our  business  methods;  but  the 
purification  can  not  stop  the  panic.  It  will  doubtless 
make  another  in  the  far  future  less  likely.  Meantime 
all  must  suffer,  both  the  innocent  and  guilty,  and  the 
innocent  more  than  the  guilty.     Certainly  the  laborer 


248  LABOR  AND  CAPITAL 

who  is  thrown  out  of  his  employment  by  the  hard  times 
is  innocent  and  suffers  more  than  the  capitalist,  whether 
innocent  or  guilty,  who  has  money  to  live  on  meantime 
until  prosperity  shall  be  restored. 

The  conclusion  I  seek  to  reach  is  that  the  working- 
man  who  entertains  a  prejudice  against  the  lawful  cap- 
italist because  he  is  wealthy,  who  votes  with  unction  for 
the  men  who  are  urging  unjust  and  unfair  legislation 
against  him,  and  who  make  demagogic  appeals  to  ac- 
quire popular  support  in  what  they  are  doing,  is  stand- 
ing in  his  own  light,  is  blind  to  his  own  interests  and  is 
cutting  off  the  limb  on  which  he  sits.  It  is  to  the  direct 
interest  of  the  workingman  to  use  careful  discrimination 
in  approving  or  disapproving  proposed  legislation  of 
this  kind  and  to  base  his  conclusion  and  vote  on  the 
issue  whether  the  provision  is  fair  or  just,  and  not  on 
the  assumption  that  any  legislation  that  subjects  a 
corporation  to  a  burden  must  necessarily  be  in  the  in- 
terest of  the  workingman.  What  I  am  anxious  to 
emphasize  is  that  there  is  a  wide  economic  and  business 
field  in  which  the  interests  of  the  wealthiest  capitalist 
and  of  the  humblest  laborer  are  exactly  the  same. 

WHERE    LABOR    AND    CAPITAL    ARE    NECESSARILY    OPPOSED 
LABOR  UNIONS  NECESSARY 

But  while  it  is  in  the  common  interest  of  labor  and 
capital  to  increase  the  fruits  of  production,  yet  in  de- 
termining the  share  of  each  in  the  product,  their  inter- 
ests are  plainly  opposed.  Though  the  law  of  supply 
and  demand  will  doubtless  in  the  end  be  the  most  potent 
influence  in  fixing  this  division,  yet  during  the  gradual 
adjustment  to  the  changing  markets  and  the  varying 
financial  conditions,  capital  will  surely  have  the  advan- 
tage unless  labor  takes  united  action.     During  the  bet- 


LABOR  AND  CAPITAL 

terment  of  business  conditions,  organized  labor,  if  acting 
with  reasonable  discretion,  can  secure  much  greater 
promptness  in  the  advance  of  wages  than  if  it  were  left 
to  the  slower  operation  of  natural  laws,  and  in  the  same 
way,  as  hard  times  come  on,  the  too  eager  employer  may 
be  restrained  from  undue  haste  in  reducing  wages.  The 
organization  of  capital  into  corporations  with  the  posi- 
tion of  advantage  which  this  gives  it  in  a  dispute  with 
single  laborers  over  wages,  makes  it  absolutely  neces- 
sary for  labor  to  unite  to  maintain  itself. 

For  instance,  how  could  workingmen,  dependent  on 
each  day's  wages  for  living,  dare  to  take  a  stand  which 
might  leave  them  without  employment  if  they  had  not 
by  small  assessments  accumulated  a  common  fund  for 
their  support  during  such  emergency?  In  union  they 
must  sacrifice  some  independence  of  action,  and  there 
have  sometimes  been  bad  results  from  the  tyranny  of 
the  majority  in  such  cases;  but  the  hardships  which 
have  followed  impulsive  resort  to  extreme  measures  have 
had  a  good  effect  to  lessen  them.  Experience,  too,  is 
leading  to  classification  among  the  members,  so  that  the 
cause  of  the  skilled  and  worthy  shall  not  be  leveled  down 
to  that  of  the  lazy  and  neglectful.  This  is  being  done, 
I  am  told,  by  what  is  called  the  maximum  and  minimum 
wage. 

CONTROVERSY  CONCERNS  MORE  THAN  WAGES 

The  diverse  interests  of  capital  and  labor  are  wider 
considerably  than  the  mere  pecuniary  question  of  the 
amount  of  wages.  They  cover  all  the  terms  of  the  employ- 
ment and  include  not  only  the  compensation  but  also  the 
circumstances  that  affect  the  comfort  and  condition  of 
the  workingmen,  including  the  daily  hours  of  work,  the 
place  in  which  they  work,  the  provisions  for  their  safety 


250  LABOR  AND  CAPITAL 

from  accident,  and  everything  else  that  is  germane  to 
the  employment. 

GOOD  EFFECT   OF   LABOR   UNIONS LEGISLATION 

The  effect  of  the  organization  of  labor,  on  the  whole, 
has  been  highly  beneficial  in  securing  better  terms  for 
employment  for  the  whole  laboring  community.  I  have 
not  the  slightest  doubt,  and  no  one  who  knows  anything 
about  the  subject  can  doubt,  that  the  existence  of  labor 
unions  steadies  wages.  More  than  this,  it  has  brought 
about  an  amelioration  of  the  condition  of  the  laborers 
in  another  way.  The  really  practical  justification  for 
popular  representative  government  rests  on  the  truth 
that  any  set  of  men  or  class  in  a  political  community  are 
better  able  to  look  after  their  own  interests,  and  more 
certain  to  keep  those  interests  constantly  in  mind,  than 
the  members  of  any  other  class  or  set  of  men,  however 
altruistic.  This  truth  is  fully  exemplified  in  the  course 
which  legislation  has  taken  since  labor  has  organized 
and  has  made  a  systematic  effort  to  secure  laws  to  pro- 
tect the  workingman  by  mandatory  provision  against 
the  heartlessness  or  negligence  of  the  employer.  Labor 
unions  have  given  great  attention  to  factory  acts  which 
secure  a  certain  amount  of  air  and  provision  for  the 
safety  of  employees,  to  the  safety-appliance  acts  in  re- 
spect to  railroads,  to  fixing  the  law  governing  the  lia- 
bility of  railroads  to  their  employees  for  injuries  sus- 
tained by  accident,  to  the  restriction  of  child  labor  in 
factories,  and  to  similar  remedial  legislation.  The  in- 
terest of  the  workingman  has  been  more  direct  in  these 
matters  than  even  that  of  the  philanthropists,  and  he 
has  pressed  the  matter  until  in  the  legislation  of  nearly 
every  state  the  effect  of  his  influence  is  seen. 


LABOR  AND  CAPITAL  251 

WISE  ATTITUDE  OF  CAPITALIST  TOWARD  ORGANIZED  LABOR 

What  the  capitalist,  who  is  the  employer  of  labor, 
must  face  is,  that  the  organization  of  labor — the  labor 
union — is  a  permanent  condition  in  the  industrial  world. 
It  has  come  to  stay.  If  the  employer  would  consult  his 
own  interest,  he  must  admit  this  and  act  on  it.  Under 
existing  conditions  the  blindest  course  that  an  employer 
of  labor  can  pursue  is  to  decline  to  recognize  labor 
unions  as  the  controlling  influence  in  the  labor  market 
and  to  insist  upon  dealing  only  with  his  particular  em- 
ployees. Time  and  time  again  one  has  heard  the  indig- 
nant expression  of  a  manager  of  some  great  industrial 
enterprise  that  he  did  not  propose  to  have  the  labor 
union  run  his  business ;  that  he  would  deal  with  his  own 
men,  and  not  with  outsiders. 

The  time  has  passed  in  which  that  attitude  can  be 
assumed  with  any  hope  of  successfully  maintaining  it. 
What  the  wise  managers  of  corporate  enterprises  em- 
ploying large  numbers  of  laborers  will  do,  is  to  receive 
the  leaders  of  labor  unions  with  courtesy  and  respect  and 
listen  to  their  claims  and  arguments  as  they  would  to  the 
managers  of  any  other  corporate  interest  with  whom 
they  were  to  make  an  important  contract  affecting  the 
business  between  them.  At  times  some  labor  leaders  are 
intoxicated  with  the  immense  power  that  they  exercise  in 
representing  thousands  of  their  fellow-workers  and  are 
weak  enough  to  exhibit  a  spirit  of  arrogance.  Dealing 
with  them  is  trying  to  the  patience  of  the  employer.  So, 
too,  propositions  from  labor  unions  sometimes  are  so 
exorbitant  in  respect  to  the  terms  of  employment  as 
literally  to  deprive  the  manager  of  the  control  which  he 
ought  to  retain  over  the  laborers  employed  in  his  busi- 
ness.    This  is  to  be  expected  in  a  comparatively  new 


252  LABOR  AND  CAPITAL 

movement  and  is  not  to  be  made  a  ground  for  condemn- 
ing it. 

On  the  other  hand,  the  arrogance  is  not  confined  to 
one  side.  We  all  of  us  know  that  there  are  a  number  of 
employers  who  have  the  spirit  of  intolerance  and  sense 
of  power  because  of  their  immense  resources,  and  that 
their  attitude  is  neither  conciliatory  nor  likely  to  lead 
to  an  adjustment  of  differences.  The  wise  men  among 
the  employers  of  labor  and  the  labor  leaders  are  those 
who  discard  all  appearance  of  temper  or  sense  of  power 
and  attempt  by  courteous  consideration  and  calm  dis- 
cussion to  reach  a  common  ground.  One  of  the  great 
difficulties  in  peaceful  adjustments  of  controversies  be- 
tween labor  and  capital  is  the  refusal  of  each  side  to 
take  time  to  understand  the  attitude  of  the  other.  The 
question  which  troubles  the  capitalist,  of  course,  is  how 
an  increase  in  wages  or  a  maintenance  of  wages  will 
affect  the  profits  of  his  business.  The  question  which 
troubles  the  workingman  is  how  much  he  can  live  on  and 
what  he  can  save  from  his  wages.  And  these  things 
are  affected  by  many  different  circumstances,  including, 
on  the  one  hand,  the  condition  of  the  market  for  the 
merchandise  which  is  being  manufactured  and  the  other 
elements  in  the  cost  of  operating  the  enterprise,  and,  on 
the  other,  the  rate  of  rent  and  the  price  of  necessaries  of 
life.  If  the  leaders  of  the  workingmen  believe  that  the 
employer  is  considering  their  argument  and  weighing 
it,  and  the  labor  leaders  manifest  an  interest  in  the 
conditions  with  reference  to  expense  and  profit  of  the 
employer,  the  possibility  of  an  adjustment  is  much 
greater  than  when  each  occupies  a  stiff  and  resentful 
attitude  against  the  other. 

The  great  advantage  of  such  organizations  as  the 
Civic  Federation  is  that  they  bring  capitalists  and  labor 


LABOR  AND  CAPITAL  253 

leaders  together  into  a  common  forum  of  discussion  and 
cast  a  flood  of  light  in  which  each  party  to  the  con- 
troversy derives  much  valuable  information  as  to  the 
mental  attitude  and  just  claims  of  the  other.  I  do  not 
think  it  a  mere  dream  either  to  hope  that  by  reason  of 
this  friendly  contact  between  employers  and  labor  lead- 
ers, labor  unions  may  be  induced  to  assist  the  cause  of 
honest  industry  by  bringing  to  bear  the  moral  force  of 
the  public  opinion  of  the  union  to  improve  the  sobriety, 
industry,  skill  and  fidelity  to  the  employer's  interests  of 
the  employee.  Indeed,  the  rules  of  some  labor  unions 
already  contain  evidence  of  a  desire  to  effect  such  a 
result. 

ARBITRATION 

This  brings  me  to  the  question  of  arbitration.  It 
goes  without  saying  that  where  an  adjustment  can  not 
be  reached  by  negotiation,  it  is  far  better  for  the  com- 
munity at  large  that  the  differences  be  settled  by  sub- 
mission to  an  impartial  tribunal  and  agreement  to  abide 
its  judgment,  than  by  resort  to  a  trial  of  resistance  and 
endurance,  by  lockouts  and  strikes  and  the  other  means 
used  by  the  parties  to  industrial  controversies  in  fight- 
ing out  the  issues  between  them.  Not  infrequently  one 
side  or  the  other — but  generally  the  capitalist  side — 
will  say  in  response  to  a  suggestion  of  arbitration  that 
there  is  nothing  to  arbitrate;  that  their  position  is  so 
impregnable  from  the  standpoint  of  reason  that  they 
could  not  abide  judgment  against  them  by  any  tribunal 
in  a  matter  subject  to  their  voluntary  action. 

In  such  a  case,  arbitration  as  a  method  of  settlement 
is  impossible,  unless  the  system  of  compulsory  arbitra- 
tion is  adopted.  It  is  a  very  serious  question  whether 
under  our  Constitution  a  decree  of  a  tribunal  under  a 


254  LABOR  AND  CAPITAL 

compulsory  arbitration  law  could  be  enforced  against 
the  side  of  the  laborers.  It  would  come  very  close  to 
the  violation  of  the  thirteenth  amendment,  which  forbids 
involuntary  servitude.  It  has  been  frequently  decided 
that  no  injunction  can  issue  which  will  compel  a  man  to 
perform  his  contract  of  employment,  and  that  on  the 
ground  that  while  the  breach  of  his  contract  may  give 
rise  to  a  claim  for  damages,  he  can  not  be  compelled,  ex- 
cept in  the  peculiar  employments  of  enlistment  in  the 
Army  and  service  on  a  ship,  specifically  to  perform  a 
labor  contract.  Hence,  compulsory  arbitration  does 
not  seem  to  be  the  solution. 

MASSACHUSETTS  PLAN 

A  method  has  been  adopted  in  Massachusetts  and 
some  other  states,  and,  indeed,  has  practically  been 
adopted  by  President  Roosevelt,  in  respect  to  the  settle- 
ment of  these  labor  controversies  which  has  substantial 
and  practical  results.  That  is  a  provision  of  law  by 
which  an  impartial  tribunal  shall  investigate  all  the 
conditions  surrounding  the  dispute,  take  sworn  evidence, 
draft  a  conclusion  in  respect  to  the  merits  of  the  issue 
and  publish  it  to  the  world.  There  often  are  disputes 
between  great  corporate  employers  and  their  employees 
which  eventuate  in  a  strike,  and  the  public  finds  it  im- 
possible to  obtain  any  reliable  information  in  respect  to 
the  matter  because  the  statements  from  both  sides  are 
so  conflicting. 

We  can  not  have  a  great  labor  controversy  or  a  great 
strike  without  its  affecting  injuriously  a  great  many 
other  people  than  those  actually  engaged  in  it.  The 
truth  is,  that  the  class  of  capital  and  the  class  of  labor, 
represented  on  the  one  side  by  the  managers  of  the  great 
corporations  and  on  the  other  side  by  the  leaders  of  the 


LABOR  AND  CAPITAL  255 

great  labor  unions,  do  not  include  all  the  members  of  the 
community  by  a  great  deal.  In  addition  to  them  are 
the  farming  community,  the  small  merchants  and  store- 
keepers, the  professional  men,  the  class  of  clerks,  and 
many  other  people  who  have  nothing  to  do  with  manual 
labor — skilled  or  unskilled — and  who  do  not  own  shares 
in  the  stock  of  industrial  or  other  enterprises  requiring 
capital  to  carry  them  on.  These  are  the  middlemen,  so 
to  speak,  in  the  controversy.  The  views  of  the  mem- 
bers of  this  body  make  up  the  public  opinion  that,  it  is 
so  often  said,  finally  decides  labor  controversies.  It  is 
for  the  information  of  this  body  in  the  community  that 
such  a  provision  as  that  of  the  Massachusetts  law  is  ad- 
mirably adapted.  That  statute  does  not  provide  for 
compulsory  arbitration,  but  it  comes  as  near  it  in  prac- 
tical affairs  as  our  system  of  constitutional  law  will 
permit. 

ANTHRACITE   COAL   ARBITRATION 

One  of  the  instances,  most  striking  in  the  history  of 
this  country,  of  the  possibility  of  bringing  capital  and 
labor  together  to  consider  the  question  from  a  stand- 
point of  reasonableness  and  patriotism  is  the  settlement 
of  the  Pennsylvania  anthracite  coal  strike.  That,  of 
course,  was  by  arbitration.  And  it  was  brought  about 
through  the  influence  of  the  President,  who  had  no  offi- 
cial relation  to  either  side,  but  who  as  the  first  citizen 
of  the  country  was  deeply  interested  in  preventing  the 
cataclysm  to  which  things  seemed  to  be  tending  in  the 
anthracite  coal  region.  The  permanence  of  the  settle- 
ment which  was  there  effected  is  a  triumphant  vindica- 
tion of  what  was  done.  And  it  illustrates  the  possi- 
bilities when  opponents  in  such  controversies  can  be 
brought  face  to  face  and  in  the  presence  of  impartial 


256  LABOR  AND  CAPITAL 

persons  be  made  to  discuss  all  the  circumstances  sur- 
rounding the  issue. 

STRIKES  COSTLY 

I  shall  not  stop  to  cite  statistics  to  show  the  enor- 
mous loss  in  the  savings  of  labor  as  well  as  the  savings 
of  capitalists  which  strikes  and  lockouts  have  involved. 
Time  was  when  the  first  resort  of  the  labor  leader  was  to 
order  a  strike.  But  experience  has  taught  both  sides 
the  loss  entailed,  and  strikes  are  now  much  less  lightly 
entered  upon,  especially  by  the  more  conservative  labor 
unions.  Everybody  admits  their  destructive  character 
and  that  all  means  should  be  resorted  to  to  avoid  them. 
Still,  there  are  times  when  nothing  but  a  strike  will  ac- 
complish the  legitimate  purpose  of  the  laborer. 

LEGAL  RIGHT  TO  STRIKE 

And,  now,  what  is  the  right  of  the  labor  union  with 
respect  to  the  strike?  I  know  that  there  has  been  at 
times  a  suggestion  in  the  law  that  no  strike  can  be 
legal.  I  deny  this.  Men  have  the  right  to  leave  the 
employ  of  their  employer  in  a  body  in  order  to  impose  on 
him  as  great  an  inconvenience  as  possible  to  induce  him 
to  come  to  their  terms.  They  have  the  right  in  their 
labor  unions  to  delegate  to  their  leaders  the  power  to  say 
when  to  strike.  They  have  the  right  in  advance  to 
accumulate  by  contribution  from  all  members  of  the 
labor  union  a  fund  which  shall  enable  them  to  live  dur- 
ing the  pendency  of  the  strike.  They  have  the  right 
to  use  persuasion  with  all  other  laborers  who  are  invited 
to  take  their  places,  in  order, to  convince  them  of  the 
advantage  to  labor  of  united  action.  It  is  the  business 
of  courts  and  of  the  police  to  respect  these  rights  with 
the  same  degree  of  care  that  they  respect  the  right  of 


LABOR  AND  CAPITAL  257 

owners  of  capital  to  the  protection  of  their  property 
and  business. 

CHANGE    OF    PUBLIC    SENTIMENT    TOWARD    UNIONS 

I  have  thus  considered  the  necessity  and  justification 
of  labor  unions  and  their  legal  power.  Those  leaders 
of  labor  unions  who  have  learned  to  pursue  conservative 
methods  have  added  greatly  to  the  strength  of  their 
cause,  and  have  given  the  unions  a  much  better  stand- 
ing with  the  great  body  of  the  people  who  are  neither 
capitalists  nor  laborers,  and  only  favor  the  greatest 
good  for  the  greatest  number.  I  am  inclined  to  think 
that  the  popular  resentment  against  the  revelations  of 
corporate  lawlessness  may  have  had  something  to  do 
with  this  change  of  sentiment. 

A  resort  to  violence,  or  other  form  of  lawlessness,  on 
behalf  of  a  labor  union,  properly  merits  and  receives 
the  sharpest  condemnation  from  the  public,  and  is  quite 
likely  to  lose  the  cause  of  labor  its  support  in  the  par- 
ticular controversy. 

NECESSITY  FOR  CONSIDERING  ABUSES 

I  have  been  discussing  the  relations  of  capital  and 
labor  and  the  lawful  scope  of  their  action,  on  the  as- 
sumption that  they  do  not  violate  the  law  or  the  rights 
of  any  member  of  the  community,  and  I  am  glad  to  say 
that  I  believe  that  this  assumption  is  correct  with  re- 
spect to  the  great  majority  of  those  engaged  as  capital- 
ists and  of  those  engaged  as  wage-earners ;  but  it  would 
be  a  very  insufficient  consideration  of  the  relations  of 
labor  and  capital  if  I  did  not  take  up  the  abuses,  law- 
lessness and  infractions  of  others'  rights,  of  which  some 
of  the  combiners  of  capital  and  some  of  the  wage- 
earners — members  of  labor  unions — have  been  from  time 


258  LABOR  AND  CAPITAL 

to  time  guilty  and  did  not  consider  further  the  remedy 
for  the  restraint  of  these  evils. 

ABUSES  OF   CAPITAL,  COMBINATIONS 

For  the  sake  of  clearness  in  examining  into  the  char- 
acter of  corporate  evils  and  abuses  which  need  restraint 
and  punishment,  we  may  divide  corporations  guilty  of 
them  into  industrial  corporations  organized  for  the  pur- 
pose of  manufacture  and  sale  of  merchandise,  and  into 
railroad  and  other  corporations  organized  for  the  trans- 
portion  of  passengers  and  goods. 

INDUSTRIAL  CORPORATIONS 

Let  us  deal  first  with  industrial  corporations.  The 
valuable  consideration  moving  to  the  public  for  confer- 
ring the  franchise  necessary  in  the  incorporation  of  such 
companies  is  the  public  benefit  to  be  derived  in  the  lower- 
ing of  prices.  The  temptation  to  the  managers,  how- 
ever, when  the  enterprises  become  very  large,  is  to  sup- 
press competition  and  maintain  prices,  and  thus  to  deny 
to  the  public  its  proper  share  in  the  benefit  sought  to 
be  attained  and  to  appropriate  to  the  corporate  owners 
all  the  profit  derived  from  improved  facilities  of  pro- 
duction. 

One  method  of  suppressing  competition  is  by  agree- 
ments between  all  the  large  concerns  engaged  in  the 
same  business  to  limit  the  output  and  maintain  prices. 
Such  agreements  are  usually  secret  and  are  difficult  for 
public  officials  to  obtain  proof  of ;  but  when  these  agree- 
ments do  become  public  and  are  successfully  prosecuted, 
this  method  is  enjoined  and  abandoned,  and  the  inde- 
pendent corporations  that  acted  together  under  secret 
agreements  to  maintain  prices  are  absorbed  into  one 
great  corporation,  so  that  the  large  proportion  of  the 


LABOR  AND  CAPITAL  259 

producing  capital  in  a  single  industry  is  placed  under  one 
control.  Then  competition  with  the  trust,  thus  formed, 
is  excluded  by  ingenious  contracts  of  sale  with  middle- 
men, distributers,  and  retail  dealers,  who  are  coerced 
by  the  agents  of  the  trust  into  a  maintenance  of  retail 
prices  and  a  withdrawal  of  all  patronage  from  smaller 
independent  and  competing  producers  through  the 
knowledge  and  fear  that  the  trust  in  times  of  active 
demand  for  its  products  will  either  refuse  to  sell  or  will 
sell  only  at  discriminating  prices  to  those  who  do  not 
comply  with  its  demand. 

ABUSES  OF  RAILWAY  CORPORATIONS 

The  second  class  of  corporations — that  is,  the  rail- 
way and  transportation  companies — have  misused  their 
great  powers  to  promote  the  unlawful  purposes  of  these 
industrial  combinations.  One  of  the  largest  elements 
going  to  make  up  the  selling  price  of  a  commodity  in 
any  part  of  the  country  is  the  cost  of  transportation 
from  the  place  of  manufacture.  If  one  business  concern 
can  secure  lower  rates  of  freight  in  the  transportation  of 
its  merchandise  to  its  customers  than  another,  the  former 
will  necessarily  drive  the  latter  out  of  business.  This  is 
exactly  what  has  happened.  The  largest  concerns  con- 
trolling enormous  shipments  and  able  as  between  com- 
peting roads  to  determine  which  shall  enjoy  the  profits 
of  the  transportation,  have  induced  and  sometimes 
coerced  the  railway  companies  into  giving  them  either 
secret  rates  or  open  public  rates  so  deftly  arranged  with 
a  view  to  the  conditions  of  the  larger  concern,  as  to  make 
it  impossible  for  its  would-be  business  competitors  to 
live.  The  rebate  of  a  very  small  amount  per  hundred- 
weight of  goods  shipped  by  any  one  of  the  great  indus- 
trial corporations  will  pay  enormous  dividends  on  the 


260  LABOR  AND  CAPITAL 

capital  invested.    The  evils  of  railroad  management  can 
be  summed  up  in  the  words  "  unjust  discrimination." 

INTEREST   OF    WAGE-EARNERS    IN    SUPPRESSION    OF    THESE 

ABUSES 

Wage-earners  are  not  injuriously  affected  in  their 
terms  of  employment  directly  by  such  violations  of  law  by 
combinations  of  capital  as  I  have  described.  But  they 
are  very  seriously  affected  in  another  way.  The  main- 
tenance of  such  unlawful  monopolies  is  for  the  purpose 
of  keeping  up  the  prices  of  the  necessities  of  life,  and 
this  necessarily  reduces  the  purchasing  power  of  the 
wages  which  the  wage-earners  receive.  This  is  a  serious 
detriment  to  them  and  a  real  reason  why  they  should 
condemn  such  corporate  abuses  and  sympathize  with  the 
effort  to  stamp  them  out.  It  is  not  that  they  should 
sympathize  with  an  effort  to  destroy  such  great  corpo- 
rate enterprises  because  they  employ  enormous  numbers 
of  wage-earners  and  lawfully  and  normally  increase  the 
capital  from  which  the  wage  fund  is  drawn,  but  they 
should  and  do  vigorously  sustain  the  policy  of  the 
Government  in  bringing  these  great  corporate  enter- 
prises within  the  law  and  requiring  them  to  conduct 
their  business  in  accordance  with  the  statutes  of  their 
country.  I  have  already  said  that  they  should  dis- 
criminate in  respect  to  legislation  affecting  their  corpo- 
ration, and  should  not  assume  that  simply  because  it 
burdened  the  enterprise  from  which  they  derived  their 
wages  it  was  in  their  interest ;  but  I  would  invoke  with 
the  utmost  emphasis  their  approval  of  the  present  inter- 
state-commerce law  as  needed  to  keep  the  railroads 
within  the  law. 


LABOR  AND  CAPITAL  261 

VIOLENCE  IN  INTEREST  OF  CAPITAL 

In  rare  instances  corporate  managers  have  entered 
into  a  course  of  violence  to  maintain  their  side  of  a  labor 
controversy.  They  have  justified  it  on  the  ground  that 
they  were  simply  fighting  fire  with  fire,  and  that  if  the 
labor  union  proceeded  to  use  dynamite  they  would  use 
dynamite  in  return.,  I  can  not  too  strongly  condemn 
this  course  or  this  argument.  No  amount  of  lawless- 
ness on  the  part  of  the  labor  striker  will  justify  law- 
lessness on  the  part  of  the  employer.  Such  a  course 
means  a  recurrence  of  civil  war  and  anarchy. 

A  second  abuse  which  employers  are  sometimes  guilty 
of  is  what  is  technically  known  as  blacklisting,  by  which 
laboring  men,  solely  because  they  may  have  been  advo- 
cates of  a  strike,  or  have  been  against  a  compromise  in  a 
labor  dispute,  are  tagged  by  one  employer  of  labor,  and 
all  other  employers  of  labor  are  forbidden  on  penalty  of 
business  ostracism  to  give  them  a  means  of  livelihood. 
This  is  unlawful  and  should  be  condemned.  It  is  the 
counterpart  of  the  boycott,  or  indeed  it  is  itself  a  boy- 
cott in  one  form,  to  which  I  shall  make  reference  here- 
after. 

ABUSES   OF   LABOR 

What  are  the  abuses  which  not  infrequently  proceed 
from  some  of  the  members  of  united  labor?  They  are, 
first,  open  violence  and  threats  of  violence  to  prevent  the 
employment  of  other  workingmen  in  the  places  which 
such  members  have  left  on  a  strike,  with  the  hope  that 
they  will  thus  prevent  their  former  employer  from  being 
able  to  carry  on  his  business.  Of  course  this  is  the 
most  effective  method,  if  successful,  of  bringing  the 
employer  to  terms.     If  the  demand  for  labor  is  such 


262  LABOR  AND  CAPITAL 

that  many  persons  of  the  same  craft  as  those  who  strike, 
not  members  of  the  labor  union,  are  idle,  it  will  be  easy 
for  the  employer  to  replace  the  strikers.  They  will  be 
out  of  a  job  and  he  will  continue  his  business. 

It  follows,  therefore,  that  the  wisest  time  for  skilled 
or  other  labor  to  strike  is  when  there  is  a  great  demand 
for  labor,  and  it  is  difficult  for  the  employer  to  replace 
those  who  leave  him.  But  if  there  are  other  laborers 
available,  then  there  are  only  two  ways  by  which  the 
strikers  can  accomplish  their  purpose,  either  by  actual 
or  threatened  violence  to  those  who  would  take  their 
places,  or  by  persuading  them  in  the  interest  of  all 
ktbor  that  they  should  join  their  union,  receive  the  bene- 
fits of  the  common  fund  for  support  during  enforced 
idleness,  and  join  in  the  refusal  to  aid  the  employer  in 
his  extremity.  Violence  and  threatened  violence  are  of 
course  unlawful  and  are  strongly  to  be  condemned. 
Persuasion  not  amounting  in  effect  to  duress  is  lawful. 

BOYCOTTS 

Another  method  by  which  wage-earners  sometimes  at- 
tempt to  coerce  their  employer  into  acquiescence  in  their 
demands  is  what  is  called  a  boycott.  It  is  a  method 
by  which  the  striking  employees  and  their  fellows  of 
their  union  attempt  to  coerce  the  whole  community  into 
a  withdrawal  of  all  association  from  their  former  em- 
ployer by  threatening  the  rest  of  the  community  that  if 
they  do  not  withdraw  their  association  from  such  em- 
ployer they  will  visit  each  one  of  them  with  similar 
treatment.  This  is  a  cruel  instrument  and  has  been 
declared  to  be  unlawful  in  every  court  with  whose  de- 
cisions I  am  familiar.  The  Anthracite  Strike  Commis- 
sion, which  was  selected  at  the  instance  of  President 
Roosevelt  and  which  had  upon  it  such  a  distinguished 


LABOR  AND  CAPITAL  263 

jurist  as  Judge  George  Gray,  of  Delaware,  and  Mr. 
Clark,  the  president  of  one  of  the  great  labor  organiza- 
tions of  the  country,  and  other  men  entirely  indifferent 
as  between  labor  and  capital — men  selected  by  agree- 
ment between  the  employers  and  the  employees  in  that 
great  controversy — used  the  following  language  in  re- 
spect to  the  boycott  : 

"  It  also  becomes  our  duty  to  condemn  another  less 
violent,  but  not  less  reprehensible,  form  of  attack  upon 
those  rights  and  liberties  of  the  citizens  which  the  public 
opinion  of  civilized  countries  recognizes  and  protects. 
The  right  and  liberty  to  pursue  a  lawful  calling  and  to 
lead  a  peaceable  life,  free  from  molestation  or  attack, 
concerns  the  comfort  and  happiness  of  all  men,  and  the 
denial  of  them  means  the  destruction  of  one  of  the 
greatest,  if  not  the  greatest,  of  the  benefits  which  the 
social  organization  confers.  What  is  popularly  known 
as  the  boycott  (a  word  of  evil  omen  and  unhappy  origin) 
is  a  form  of  coercion  by  which  a  combination  of  many 
persons  seek  to  work  their  will  upon  a  single  person  or 
upon  a  few  persons  by  compelling  others  to  abstain 
from  social  or  beneficial  business  intercourse  with  such 
person  or  persons.  Carried  to  the  extent  sometimes 
practiced  in  aid  of  a  strike,  and  as  was  in  some  in- 
stances practiced  in  connection  with  the  late  anthracite 
strike,  it  is  a  cruel  weapon  of  aggression,  and  its  use 
immoral  and  antisocial." 

To  say  this  is  not  to  deny  the  legal  right  of  any  man 
or  set  of  men  voluntarily  to  refrain  from  social  inter- 
course or  business  relations  with  any  persons  whom  he 
or  they,  with  or  without  good  reason,  dislike.  This 
may  sometimes  be  un-Christian,  but  it  is  not  illegal. 
But  when  it  is  a  concerted  purpose  of  a  number  of  per- 
sons not  only  to  abstain  themselves  from  such  inter- 


LABOR  AND  CAPITAL 

course,  but  to  render  the  life  of  their  victim  miserable 
by  persuading  and  intimidating  others  to  refrain,  such 
purpose  is  a  malicious  one,  and  the  concerted  attempt  to 
accomplish  it  is  a  conspiracy  at  common  law,  and  merits 
and  should  receive  the  punishment  due  to  such  a  crime. 
I  may  add  that  the  same  Commission  visited  black- 
listing with  similar  condemnation. 

,EGAL  REMEDIES   FOR  ABUSES 

What  are  the  remedies  by  which  a  person  injured 
may  be  protected  against  the  illegal  acts  of  combina- 
tions of  capital  and  of  combinations  of  labor?  First, 
if  the  injury  sought  to  be  inflicted  is  one  which  will  be 
inadequately  compensated  for  in  money  damages,  one 
can  apply  to  a  court  of  equity  to  prevent  the  injury 
from  being  done,  and  that  court  can,  in  advance  of  the 
proposed  violation  of  the  plaintiff's  rights,  determine 
exactly  what  those  rights  are  and  advise  the  defendant 
accordingly ;  or  he  can  wait  until  the  acts  are  performed 
and  then,  by  suit  for  damages,  he  can  make  himself 
whole  if  he  can. 

REMEDY   BY   INJUNCTION    PREFERRED 

In  cases  of  unlawful  combinations  of  capital,  as  well 
as  of  such  combinations  of  labor,  the  method  in  equity 
by  securing  an  injunction  seems  to  be  preferred  by  those 
who  are  about  to  be  injured.  In  every  statute  which 
has  been  enacted  to  denounce  the  improper  use  of  capi- 
tal to  secure  illegal  restraints  of  trade  and  illegal 
monopolies,  a  specific  provision  has  been  inserted  en- 
abling those  who  are  injured  or  affected  to  bring  an 
equity  proceeding  to  enjoin  the  carrying  on  of  the  im- 
proper methods  about  to  be  attempted.  In  the  same 
way,  when  labor  unions  or  members  of  labor  unions  or 


LABOR  AND  CAPITAL  265 

workingmen  on  a  strike  resort  to  methods  destructive  of 
the  business  of  their  employer  and  his  property,  the 
employer  deems  it  the  most  convenient  method  of  de- 
fending himself  to  apply  to  a  court  of  equity  for  an 
injunction  against  those  who  give  indication  of  their 
intention  to  carry  on  such  methods. 

CRITICISM    OF    INJUNCTION    REMEDY 

This  remedy  by  injunction  has  been  very  severely  de- 
nounced and  criticised,  on  the  ground  that  it  places  in 
the  hands  of  a  judge  legislative,  judicial  and  executive 
powers;  that  it  enables  him  to  make  the  law  for  one 
case  against  a  particular  individual  and  if  he  does  not 
abide  by  it  to  try  him  and  punish  him.  When  this  ob- 
jection is  analyzed  it  is  found  to  be  unjust. 

CRITICISM   UNJUST 

An  injunction  suit  does  not  differ  in  the  slightest  de- 
gree from  a  suit  brought  after  the  event,  so  far  as  the 
function  of  the  court  is  concerned  in  declaring  the  law, 
except  that  the  court  declares  the  law  in  respect  of 
anticipated  facts  rather  than  in  respect  of  those  which 
have  happened.  He  has  no  authority  to  make  law.  In 
an  injunction  suit,  as  in  any  other  suit,  he  merely  in- 
terprets the  law  and  applies  it  to  the  circumstances. 
His  judgment  in  the  one  case  involves  exactly  the  same 
precedents  and  the  same  rules  of  law  as  in  the  other. 
In  order  to  save  the  party  plaintiff  from  having  to 
bring  suit  to  recover  for  an  injury  that  he  is  going  to 
suffer,  he  says,  "This  is  an  unlawful  injury;  and  as 
you  threaten  to  do  it  I  enjoin  you  from  doing  it." 

PREVENTION    BETTER    THAN    CURE 

Certainly,  prevention  is  better  than  cure,  and  it  is 
no  wonder  that  a  man  who  is  about  to  have  his  business 


266  LABOR  AND  CAPITAL 

injured  or  his  property  destroyed  prefers  to  prevent  the 
injury  rather  than  to  allow  it  to  occur.  Neither  a  suit 
in  damages  nor  a  criminal  prosecution  is  likely  to  bring 
him  back  his  property  or  to  restore  his  loss.  More- 
over, in  cases  of  boycott,  in  many  states,  there  is  no 
provision  for  criminal  prosecution. 

HISTORY  OF  WRIT  OF  INJUNCTION 

I  wish  to  invite  attention  to  this  writ  of  injunction, 
which  is  one  of  the  most  beneficial  remedies  known  to 
the  law,  and  to  trace  its  history  and  show  how  useful  it 
has  been  in  the  past  for  the  purpose  of  preventing 
injustice. 

Originally,  in  England,  from  which  we  get  our  pro- 
cedure and  most  of  our  law,  the  King  was  supposed  to 
decide  cases  through  his  judges  of  the  King's  bench  or 
of  the  common  pleas.  The  common  law  was  rather 
rigid  and  severe,  especially  in  holding  persons  to  the 
letter  of  their  contracts,  and  judgments  went  for  the 
plaintiff  on  this  strict  interpretation  that  really  shocked 
the  conscience.  And  so,  after  a  while,  the  people  began 
to  appeal  to  the  King  to  save  them  from  the  severity 
of  his  own  courts.  He  turned  the  matter  over  to  the 
lord  keeper  of  the  great  seal,  and  said,  "  Work  out 
equity  in  this  case."  The  way  the  lord  keeper  worked 
it  out  was  not  to  issue  any  direction  to  the  court  of 
King's  bench  or  the  common  pleas ;  but  he  took  hold  of 
the  plaintiff  in  the  suit  and  threatened  him  with  ex- 
communication if  he  did  not  stop  the  suit  and  do  that 
justice  which  equity  required. 

In  other  words,  he  enjoined  the  plaintiff  from  pro- 
ceeding with  the  suit  in  the  court  of  the  King's  bench 
or  of  the  common  pleas,  as  the  case  might  be,  and 
brought  him  into  what  grew  to  be  a  court  of  equity 


LABOR  AND  CAPITAL  267 

known  as  the  court  of  chancery.  As  the  lord  keeper 
in  those  days  was  an  ecclesiastic,  he  exercised  power  over 
the  consciences  of  the  litigants,  and  the  threat  of  ex- 
communication was  generally  sufficient  to  enforce  what 
he  wished.  Subsequently,  the  lord  keeper  ceased  to  be 
a  bishop  and  became  known  as  the  lord  chancellor,  and 
after  the  court  of  equity  had  been  established,  violation 
of  the  injunction  was  punished  by  imprisonment  instead 
of  excommunication. 

USEFULNESS    OF    WRIT 

Let  me  take  a  case  that  illustrates  the  usefulness  of 
the  writ  of  injunction.  At  common  law,  when  a  man 
wished  to  borrow  $500  on  his  farm  which  was  worth 
$10,000  he  gave  a  mortgage  to  secure  it.  The  mort- 
gage was  a  conveyance  of  the  title  to  the  land  with  the 
condition  that  the  title  should  become  absolute  if  the 
money  was  not  paid  on  the  date  mentioned  in  the  mort- 
gage. If  the  money  was  not  paid,  the  creditor  could 
put  the  debtor  out  of  possession  by  suit  and  for  $500 
become  the  owner  of  a  farm  which  was  worth  $10,000. 
In  such  a  case  the  lord  keeper  said  to  the  plaintiff: 
"  Here,  you  are  trying  to  get  this  farm  for  $500  when  it 
is  worth  $10,000.  That  is  not  equitable,  and  I  will  not 
let  you  do  it.  I  will  enjoin  you  from  continuing  that 
suit,  because  you  are  after  something  that  is  unjust, 
and  I  will  make  you  come  in  before  me  and  settle  this, 
and  if  the  defendant  is  not  able  to  pay  the  $500  and 
interest  we  will  sell  the  farm  and  pay  you  the  $500  and 
interest  and  turn  over  the  balance  to  the  defendant. " 
That  was  an  equitable  decision,  and  it  was  made  effec- 
tive by  the  power  of  injunction. 

A  man  leases  a  farm,  with  a  row  of  beautiful  trees, 
to  a  tenant.     The  tenant  advises  him  that  he  is  going 


268  LABOR  AND  CAPITAL 

to  cut  the  trees  down  during  his  tenancy.  What  is  the 
landlord  to  do?  Is  he  to  let  the  tenant  cut  his  trees 
down  and  then  sue  him  for  the  value  of  the  trees?  No. 
Equity  suggests  the  remedy  that  he  go  into  court  and 
enjoin  the  man  and  prevent  injury  which  could  not  be 
compensated  for  in  damages. 

A  man  owns  a  lucrative  business  and  a  numerous  set 
of  people  conceive  a  prejudice  against  him  or  a  desire 
to  injure  him,  and  institute  a  boycott  against  him  and 
threaten  everybody  that  they  will  withdraw  their  pat- 
ronage, which  is  valuable,  from  anybody  that  has  any- 
thing to  do  with  him.  In  that  way  he  loses  a  lot  of 
customers.  Now,  is  not  it  better  that  he  should  apply 
to  the  court  to  enjoin  them  from  taking  that  course, 
and  inflicting  injury  on  him  that  he  can  not  measure  in 
damages,  than  that  they  should  be  permitted  to  destroy 
his  business  and  he  should  have  the  burden  of  a  lawsuit 
afterwards,  with  all  the  uncertainty  as  to  damages  and 
the  doubt  about  getting  his  money  even  if  he  secured  a 
judgment? 

So,  too,  where  a  body  of  strikers  by  continued  acts 
of  violence,  trespass,  constituting  a  nuisance,  attempts 
to  stop  his  business,  it  is  peculiarly  difficult  for  him 
to  estimate  the  injury  he  suffers,  and  a  judgment  for 
money  would  be  a  very  inadequate  remedy. 

ABUSE  OF  WRIT  OF  INJUNCTION 

But  it  is  said  that  the  writ  of  injunction  has  been 
abused  in  this  country  in  labor  disputes,  and  that  a 
number  of  injunctions  have  been  issued  that  ought  never 
to  have  been  issued.  I  agree  that  there  has  been  abuse 
in  this  regard.  President  Roosevelt  referred  to  it  in  his 
last  message.  I  think  it  has  grown  chiefly  from  the 
practice  of  issuing  injunctions  ex  parte;  that  is,  with- 


LABOR  AND  CAPITAL  269 

out  giving  notice  or  hearing  to  the  defendant.  The 
injustice  that  is  worked  is  in  this  wise:  Men  leave  em- 
ployment on  a  strike,  intending  to  conduct  themselves 
peaceably  and  within  the  law.  The  counsel  for  the 
employer  visits  a  judge,  presents  an  affidavit  in  which 
an  averment  is  made  that  violence  is  threatened,  injury 
to  property  and  injury  to  business.  And  accordingly 
on  this  affidavit  the  judge  issues  a  temporary  restrain- 
ing order  ex  parte  against  the  defendants  who  are 
named  in  the  petition  or  bill.  The  broadest  expressions 
are  used  in  the  writ — frequently  too  broad.  The  de- 
fendants are  workingmen,  not  lawyers.  They  are  not 
used  to  processes  of  the  court.  The  expressions  of  the 
writ  are  formidable.  A  doubt  arises  in  their  minds  as 
to  the  legality  of  what  they  are  about  to  do.  The 
stiffening  is  taken  out  of  the  strike,  the  men  drop  back 
and  the  strike  is  over,  and  all  before  they  have  had  a 
chance  in  court  to  demonstrate,  as  they  might,  that 
they  had  no  intention  of  doing  anything  unlawful  or 
doing  any  violence. 

FAVORS   REQUIRING   NOTICE 

Under  the  original  Federal  judiciary  act,  it  was  not 
permissible  for  the  Federal  courts  to  issue  an  injunc- 
tion without  notice.  There  had  to  be  notice  and,  of 
course,  a  hearing.  I  think  it  would  be  entirely  right 
in  this  class  of  cases  to  amend  the  law  and  provide  that 
no  temporary  restraining  order  should  issue  at  all  until 
after  notice  and  a  hearing.  Then  the  court  could  be 
advised  by  both  sides  with  reference  to  the  exact  situa- 
tion, and  the  danger  of  issuing  a  writ  too  broad  or  of 
issuing  a  writ  without  good  ground  would  generally  be 
avoided. 


270  LABOR  AND  CAPITAL 

FAVORS    REQUIRING    A    DIFFERENT    JUDGE    IN    CONTEMPT 
PROCEEDINGS  FROM  THE  JUDGE  ISSUING  INJUNCTION 

There  is  another  objection  made,  and  that  is  that  the 
judge  who  issues  the  writ  has  a  personal  sensitiveness  in 
respect  to  its  violation  that  gives  him  a  bias  when  he 
comes  to  hear  contempt  proceedings  on  charge  of 
disobedience  to  the  order,  and  makes  it  unfair  for  him 
to  impose  a  punishment  if  conviction  follows:  I  think 
few  judges  on  the  bench  would  allow  such  a  considera- 
tion to  affect  them,  but  I  agree  that  there  is  a  popular 
doubt  of  the  judge's  impartial  attitude  in  such  a  case. 
For  that  reason,  I  would  favor  a  provision  allowing 
the  defendant  in  contempt  proceedings  to  challenge  the 
judge  issuing  the  injunction,  and  to  call  for  the  desig- 
nation of  another  judge  to  hear  the  issue.  I  do  not 
think  it  would  seriously  delay  the  hearing  of  the  cause, 
and  it  would  give  more  confidence  in  the  impartiality 
of  the  decision.  It  is  almost  as  important  that  there 
should  be  the  appearance  of  justice  as  that  there  should 
be  an  actual  administration  of  it. 

OBJECTION  TO  TRIAL  OF  CONTEMPT  BY  JURY 

But  now  it  is  said,  Why  not  have  a  trial  by  jury? 
The  reason  why  this  is  objectionable  is  because  of  the 
delay  and  of  the  character  of  jury  trial.  It  would 
greatly  weaken  the  authority  and  force  of  an  order  of 
court  if  it  were  known  that  it  was  not  to  be  enforced 
except  after  a  verdict  of  jury.  Never  in  the  history 
of  judicial  procedure  has  such  a  provision  intervened 
between  the  issue  of  an  order  of  court  and  its  enforce- 
ment. I  am  quite  willing  to  hedge  around  the  exercise 
of  the  power  to  issue  the  writ  of  injunction  with  as  many 
safeguards  as  are  necessary  to  invite  the  attention  of 


LABOR  AND  CAPITAL  271 

the  court  to  the  care  with  which  he  shall  issue  the  writ ; 
but  to  introduce  another  contest  before  the  writ  shall  be 
enforced,  with  all  the  uncertainties  and  digressions  and 
prejudices  that  are  injected  into  a  jury  trial,  would 
be  to  make  the  order  of  the  court  go  for  nothing. 

PLAINTIFF   ENTITLED    TO   ANCIENT   REMEDY   OF 
INJUNCTION 

What  the  plaintiff  in  such  cases  is  asking  to  secure 
is  protection  of  his  property  and  his  business  from  a 
constant  series  of  attacks.  An  injunction  offers  a 
remedy  which  is  not  given  either  by  criminal  prosecu- 
tions or  the  suit  for  damages.  The  plaintiff  is  not  try- 
ing to  punish  somebody ;  he  is  trying  to  protect  himself 
after  the  court  shall  have  defined  what  his  rights  are. 
That  right  has  been  his  in  cases  of  this  general  char- 
acter for  years,  and  why  should  he  be  asked  to  give  it 
up  now? 

LABOR  UNIONS  SHOULD  CARRY  DECISIONS  THEY  CONDEMN 
TO   COURTS  OF   LAST   RESORT 

If,  whenever  a  court  issues  an  injunction  that  is  im- 
properly worded,  that  goes  too  far,  or  that  ought  never 
to  have  been  granted,  the  labor  union  interested  will 
take  the  matter  up  to  the  court  of  last  resort,  it  will 
secure  a  series  of  decisions  that  will  prevent  the  issue 
of  injunctions  such  as  some  of  those  of  which  they  now 
complain.  The  labor  union  has  a  fund,  and  it  could 
not  be  devoted  to  a  better  purpose  than  fixing  the  law 
exactly  as  it  should  be  under  the  decision  of  the  court  of 
last  resort.  I  should  not  object  at  all  to  the  definition 
of  the  rights  of  employer  and  of  the  withdrawing  em- 
ployee in  labor  controversies  by  statute.  I  should  think 
that  an  excellent  way  of  making  clear  what  is  lawful 


n%  LABOR  AND  CAPITAL 

and  what  is  unlawful.  But  until  that  course  is  pur- 
sued, the  rights  of  the  parties  to  such  controversies 
should  be  carefully  defined  by  courts  of  last  resort,  and 
when  this  is  done  courts  of  first  instance  will  keep  within 
lawful  bounds. 

CONCLUSION 

I  fear  I  have  wearied  you  with  this  long  discussion. 
I  have  attempted  to  treat  the  matter  from  an  impartial 
standpoint  and  without  prejudice  for  or  against  capi- 
tal, or  for  or  against  labor.  There  is  a  class  of  capital- 
ists who  look  upon  labor  unions  as  vicious  per  se,  and  a 
class  of  radical  labor  unionists  who  look  upon  capital 
as  labor's  natural  enemy.  I  believe,  however,  that  the 
great  majority  of  each  class  are  gradually  becoming 
more  conciliatory  in  their  attitude,  the  one  toward  the 
other.  Between  them  is  a  larger  class,  neither  capital- 
ist nor  labor  unionist,  who  are  without  prejudices,  and 
I  hope  I  am  one  of  those.  The  effects  of  the  panic 
are  not  over.  We  must  expect  industrial  depression. 
This  may  be  fruitful  of  labor  controversies.  I  ear- 
nestly hope  that  a  more  conservative  and  conciliatory 
attitude  on  both  sides  may  avoid  the  destructive  strug- 
gles of  the  past. 


THE  ACHIEVEMENTS  OF  THE  REPUBLICAN 
PARTY 

DELIVERED  AT  KANSAS  CITY,  MISSOURI,  BEFORE  THE  YOUNG 

MEN'S  REPUBLICAN  CLUB  OF  MISSOURI, 

FEBRUARY     10,    1908 

Fellow-Republicans  :  We  meet  to-day  to  celebrate  the 
memory  of  Abraham  Lincoln.  One  of  the  bases  for  the 
everlasting  gratitude  which  the  country  owes  him  is  the 
part  he  took  in  the  successful  establishment  in  national 
political  control  of  the  Republican  Party.  Lincoln  was 
a  party  man,  as  all  men  must  be  who  expect  to  leave 
their  individual  impress  upon  the  political  character  of 
the  Nation. 

A  modern  government  of  a  people  of  80,000,000  is 
complicated  under  any  system.  The  difficulties  of  its 
management  are  not  lessened  when  we  commit  its  control 
to  all  males  over  the  age  of  twenty-one,  and  call  it  a 
Republic.  How  is  it  possible  to  reduce  the  varying 
views  of  the  entire  population  to  one  resultant  execu- 
tive force  which  shall  carry  on  this  machine  of  govern- 
ment in  the  public  interest  and  for  the  public  weal? 
The  problem  has  been  solved  by  the  institution  of 
parties.  A  party  can  not  be  useful  unless  those  who 
are  members  of  it  yield  their  views  on  some  issues  and 
unite  with  respect  to  the  main  policies  to  be  pursued. 
The  resultant  solidarity  is  necessary  to  secure  efficacy. 
The  sense  of  responsibility  for  the  continued  successful 
operation  of  the  government  must  furnish  cohesive 
power.  The  party  is  the  more  efficient,  in  which  the 
members  are  more  nearly  united  on  the  great  principles 
of  governmental  action.     Though  a  party  has  its  plat- 

273 


274  THE  ACHIEVEMENTS  OF 

form,  and  on  the  faith  of  it  has  been  elected  to  power, 
many  issues  may  unexpectedly  arise  in  the  course  of  an 
administration  not  controlled  by  the  party's  declared 
principles.  The  disposition  of  such  issues  must  depend 
on  the  ability  and  courage  of  the  party  leaders.  A 
party  may  divide  on  a  new  issue  until  by  a  process  of 
education  the  sounder  view  prevails,  and  the  party  be- 
comes united  again  in  the  enforcement  of  the  new 
principle.  As  a  party  shows  itself  homogeneous,  able  to 
grasp  the  truth  with  respect  to  new  issues,  able  to 
discard  unimportant  differences  of  opinion,  sensitive 
with  respect  to  the  successful  maintenance  of  govern- 
ment, and  highly  charged  with  the  responsibility  of  its 
obligation  to  the  people  at  large,  it  establishes  its  claim 
to  the  confidence  of  the  public  and  to  its  continuance 
in  political  power.  We  are  apt  to  deny  to  parties 
characteristics  and  traits  like  those  of  a  person,  but  I 
venture  to  think  that  a  history  of  political  parties  in 
which  the  description  is  clothed  with  life  and  truth 
must  always  treat  them  as  having  some  personal  at- 
tributes. 

The  course  of  the  Republican  Party  since  its  organi- 
zation in  1856,  and  its  real  assumption  of  control  in 
1861,  down  to  the  present  day,  is  remarkable  for  the 
foresight  and  ability  of  its  leaders,  for  the  discipline 
and  solidarity  of  its  members,  for  its  efficiency  and  deep 
sense  of  responsibility,  for  the  preservation  and  success- 
ful maintenance  of  the  government,  and  for  the  greatest 
resourcefulness  in  meeting  the  various  trying  and  diffi- 
cult issues  which  a  history  of  now  a  full  half  century 
has  presented  for  solution.  It  was  born  of  a  desire  to 
maintain  inviolate  the  union  of  the  States.  Its  essence 
was  that  of  nationalism,  and  its  spirit  was  that  of  sac- 
rifice, no  matter  how  great,  to  maintain  the  integrity 


THE  REPUBLICAN  PARTY  275 

of  our  whole  country.  The  federalism  of  Washington, 
Marshall  and  Hamilton  was  the  guide  of  its  constitu- 
tional construction,  and  it  did  not  hesitate,  when  the 
issue  was  presented,  to  submit  its  view  of  the  great  fun- 
damental instrument  of  our  government  to  the  arbitra- 
ment of  a  long  and  bloody  war.  The  leader  of  the  Re- 
publican party  during  the  Civil  War  was  Abraham 
Lincoln.  In  all  the  varieties  of  controversy  with  which 
it  has  since  had  to  deal,  it  has  never  lost  the  inspira- 
tion of  his  leadership. 

When  the  Republican  Party  entered  upon  the  war  in 
1861,  the  only  issue  it  was  willing  to  fight  out  was  that 
of  the  preservation  of  the  Union.  It  did  not  then  as- 
sume the  burden  of  the  complete  abolition  of  slavery. 
There  were  many  in  its  ranks  who  pressed  for  such  a 
declaration,  but  the  time  had  not  come.  The  course  of 
war  made  abolition  inevitable,  and  Mr.  Lincoln,  who 
was  the  greatest  politician  of  his  age,  led  his  party  a 
long  way  by  the  Emancipation  Proclamation.  Even 
as  he  did  this,  he  created  a  division  in  his  party.  It  was 
one  of  the  first  instances  in  which  the  party  showed 
its  own  power  of  self-preservation  by  gradually  con- 
vincing the  minority  of  the  righteousness  of  the  new 
issue. 

After  the  martyrdom  of  Lincoln  came  the  period 
of  reconstruction  and  the  adoption  of  the  so-called 
War  Amendments.  The  Thirteenth  Amendment  gave 
to  the  negro  the  boon  of  freedom,  but  it  left  as  children 
in  the  world  four  or  five  millions  of  people,  not  five  per 
cent,  of  whom  could  read  or  write,  and  all  of  whom  had 
been  dependent  upon  others  for  what  they  ate  and 
wore  and  did.  Their  emancipation  was,  of  course,  the 
first  great  step  in  their  elevation  as  a  race,  but  it  in- 
volved at  first  great  hardship  and  suffering  and  dis- 


276  THE  ACHIEVEMENTS  OF 

couragement,  as  all  great  changes  in  existing  conditions 
must.  Still  the  Thirteenth  Amendment  has  accom- 
plished its  purpose. 

The  Fourteenth  Amendment  secured  to  the  negro  the 
equal  protection  of  the  laws  of  the  State  in  which  he 
lived.  This  is  the  amendment  which,  second  to  his 
emancipation,  has  become  the  most  important  in  his 
development.  Living  in  the  s^me  community  in  which 
he  had  been  a  chattel,  the  great  danger  was  that  legis- 
lation would  be  enacted  which  might  prevent  him  from 
enjoying  the  same  benefit  from  the  guaranties  of  life, 
liberty  and  property  that  were  extended  to  his  white 
fellow-citizens.  It  was  of  the  highest  importance  to  him 
to  be  assured  of  those  economic  rights  in  the  enjoyment 
and  pursuit  of  which  lay  the  hope  of  his  future  progress. 

The  opportunity  of  the  Southern  negro  lay,  first,  in 
education ;  second,  in  the  skill  of  his  hands  as  a  laborer 
and  in  his  industry  as  a  tiller  of  the  soil ;  and,  third,  in 
his  capacity  to  save  from  his  earnings  sufficient  to  en- 
able him  to  accumulate  capital  to  buy  land  and  es- 
tablish his  economic  independence.  Thus  could  he  make 
himself  useful  to  the  community  in  which  he  lived  and 
secure  the  respect  which  would  certainly  come  to  one 
showing  himself  indispensable  to  the  growth  and  pros- 
perity of  the  South.  Thus  would  flow  all  the  incidents 
of  power  and  influence  to  which  he  aspired.  When  we 
regard  the  history  of  the  forty  years  through  which  the 
colored  man  of  this  country  has  been  obliged  to  strug- 
gle, the  progress  which  he  has  made,  material  and  edu- 
cational, is  wonderful. 

The  third  great  War  Amendment — the  Fifteenth — 
forbade  any  State  to  deprive  the  negro  of  his  vote  on 
account  of  his  color  or  previous  condition  of  servitude. 
The  operation  of  this  amendment  has  not  been  as  sue- 


THE  REPUBLICAN  PARTY  277 

cessful  as  that  of  the  Thirteenth  and  Fourteenth.  Nor 
is  this  surprising.  Consider  the  condition  of  things  im- 
mediately after  the  war.  Here  was  a  masterful  people, 
who  had  been  used  to  a  social  condition  in  which  the 
negro  occupied  a  servile  status,  brought  by  law  to  face 
the  prospect  of  sharing  political  control  with  the  poor, 
ignorant  and  bewildered  masses,  who  but  the  day  be- 
fore had  been  their  property.  Declarations  of  equality 
and  popular  rights  and  universal  suffrage  offer  but  a 
feather's  weight  against  the  inevitable  impulses  of  hu- 
man nature.  It  was  impossible  that  with  the  elements 
I  have  stated,  there  should  not  have  been  developed 
fraud  and  violence  and  illegality.  It  was  impossible 
that  that  which  was  written  on  the  tables  of  the  funda- 
mental law  or  in  the  statute  book  should  be  immediately 
carried  into  effective  execution.  After  a  long  struggle, 
the  history  of  which  I  shall  not  recall,  the  negro's  vote 
in  the  Southern  States  was  made  to  count  for  nothing. 
Then  the  leaders  of  the  South  in  many  States  came  to 
realize  the  dreadful  demoralization  of  all  society  if  law 
was  to  be  flouted  and  fraud  was  to  constitute  the  basis 
of  government.  So  they  cast  about  to  make  the  law 
square  with  the  existing  condition  by  property  and  edu- 
cational qualifications  which  should  exclude  most  of  the 
negro  vote. 

This  very  desire  to  avoid  the  violent  methods  which 
were  wont  to  overcome  the  colored  vote  in  the  South 
itself  indicates  a  turn  for  the  better.  It  is  said,  how- 
ever, and  with  truth,  that  these  election  laws  are  in- 
tended to  be  enforced  by  means  of  the  discretion  vested 
in  election  officers,  so  as  to  exclude  the  ineligible  colored 
men  with  rigor  and  to  allow  the  ineligible  whites,  who 
ought  also  to  be  excluded,  to  enjoy  the  franchise.  De- 
plorable as  this  is,  still  the  situation  is  by  no  means 


278  THE  ACHIEVEMENTS  OF 

a  hopeless  one  for  the  Southern  negro  and  the  political 
power  that  he  may  in  the  future  exercise.  In  the  first 
place,  if  he  continues  to  increase  in  intelligence  by  the 
acceptance  of  his  educational  opportunities,  and  if  in- 
dustrially he  becomes  a  power,  and  thus  gradually 
increases  the  number  of  his  race  who  are  eligible  to 
vote  in  accordance  with  law,  he  will  introduce  into  the 
electorate  a  body  of  individuals  well  qualified  to  act 
with  common  sense  and  judgment,  and  who,  by  their 
very  position  in  the  community,  will  give  weight  to  the 
vote  they  cast.  Their  position  and  influence  as  a  grow- 
ing representation  of  their  race,  qualified  to  exercise  the 
right  of  suffrage,  will  become  stronger  and  stronger. 
Such  a  gradual  acquisition  of  political  power  will  se- 
cure them  real  influence  and  an  opportunity  to  help  their 
race  to  further  progress.  The  greatest  friend  the 
Southern  negro  is  likely  to  have  is  the  broad-minded 
Southern  white  man  who  sympathizes  with  the  colored 
man  and  knows  his  value  to  the  South.  Nor  is  it  unrea- 
sonable to  hope  that  the  men  who  have  already  sought 
to  come  within  the  law,  and  avoid  violence,  will  ul- 
timately see  the  wisdom  and  righteousness  of  the  equal 
enforcement  of  the  law  of  eligibility  against  white  and 
black.  While  I  fully  recognize  the  fact  that  the  Fif- 
teenth Amendment  has  not  accomplished  all  that  it  was 
intended  to  accomplish,  and  that  for  a  time  it  seemed 
to  be  a  dead  letter,  I  am  confident  that  in  the  end 
it  will  prove  to  be  a  bulwark  equally  beneficial  with  that 
of  the  Thirteenth  and  Fourteenth  Amendments  to  an 
unfortunate,  down-trodden,  struggling  race,  to  whom, 
in  view  of  the  circumstances  under  which  they  were 
brought  to  this  country  and  the  conditions  of  bondage 
in  which  they  were  continued  for  more  than  two  cen- 
turies, we  owe  every  obligation  of  care  and  protection. 


THE  REPUBLICAN  PARTY  279 

That  which  has  been  done  for  the  benefit  of  the  negro 
race  is  the  work  of  the  Republican  Party.  It  is  one 
of  those  great  issues  presented  by  the  exigencies  of  the 
war  which  the  party  has  had  the  firmness  and  courage 
to  meet.  The  party  has  not  yet  been  entirely  success- 
ful in  fully  working  out  the  problem,  but  nearly  all 
that  has  been  done  has  been  done  at  its  instance  or  with 
its  aid. 

Another  issue  which  the  Republican  Party  found  it- 
self pursued  by  as  an  outgrowth  of  the  war  was  the 
question  of  money,  and  on  that  the  party  showed  a 
marked  capacity  for  reaching  a  unanimous  and  sound 
conclusion  after  much  controversy  within  its  ranks.  In 
order  to  maintain  the  government  during  the  dark  days 
of  the  war,  we  departed  from  the  gold  and  silver  mone- 
tary medium  and  issued  as  currency  paper  promises  of 
the  Government  to  pay.  The  students  of  finance  to-day 
are  disposed  generally  to  think  that  the  issue  of  green- 
backs was  not  necessary  to  sustain  the  government, 
and  that  it  might  have  been  possible  to  conduct  the 
enormous  operations  of  the  war  and  sjill  retain  gold  and 
silver  coin.  However  this  may  be,  we  found  ourselves 
at  the  end  of  the  war  with  a  great  volume  of  greenback 
currency  and  no  means  of  redeeming  it.  For  a  time 
many  members  of  the  Republican  Party  seemed  to 
think  that  the  wise  course  to  pursue  was  to  reduce  the 
evil  by  increasing  our  irredeemable  obligations.  They 
imbibed  the  theory  of  fiat  currency,  that  the  govern- 
ment might  create  money  and  pay  all  its  debts  by  merely 
printing  promises  to  pay.  Gradually  the  greenback 
heresy  was  eliminated.  The  Republican  Party  sloughed 
off  its  diseased  members  and  took  the  firm,  solid  and 
righteous  position  that  it  would  redeem  every  dollar  of 
its  bonds  and  of  its  other  indebtedness  in  coin  of  the 


280  THE  ACHIEVEMENTS  OF 

United  States.  On  the  1st  of  January,  1878,  specie 
payments  were  resumed  and  the  paper  of  the  govern- 
ment became  as  good  as  gold. 

In  the  decade  between  1880  and  1890,  the  greater 
production  of  silver  had  cheapened  the  metal  in  com- 
parison with  gold,  and  quack  remedies  for  financial 
troubles,  in  the  form  of  the  greater  use  of  silver  money, 
seized  a  large  part  of  the  electorate,  both  Republicans 
and  Democrats.  The  silver  question  was  fought  out  for 
twelve  or  fifteen  years,  and  in  that  time  many  of  the 
Republican  leaders  supported  doctrines  which  now 
would  seem  heretical.  Gradually,  however,  the  lines  were 
formed.  The  Democracy  under  Mr.  Bryan  advanced 
the  theory  that  the  free  coinage  of  silver,  which  was  in 
effect  repudiation  of  half  of  every  debt,  was  the  solution 
of  all  our  difficulties,  while  the  Republican  Party,  gradu- 
ally and  reluctantly,  took  its  position  in  favor  of  the 
single  gold  standard  and  against  any  depreciation  of  it 
to  make  easier  payment  of  debts.  In  the  great  battle 
of  1896  the  Republican  Party  again  stood  for  the 
maintenance  of  the  integrity  of  the  nation.  The  fight 
was  against  odds  produced  by  a  great  industrial  de- 
pression, and  against  the  most  sophistical  arguments. 
The  Republican  Party  maintained  a  campaign  of  edu- 
cation among  the  wage-earners  and  the  farmers,  which 
ultimately  led  to  the  complete  defeat  of  this  second 
financial  heresy  which  had  threatened  the  integrity 
of  our  business  structure. 

One  of  the  great  policies  to  which  the  Republican 
Party  has  been  pledged  from  the  beginning  has  been  the 
protective  system,  by  which  industries  have  been  di- 
versified and  domestic  manufactures  and  farm  produc- 
tions have  been  enormously  developed.  The  method  con- 
sists in  the  imposition  of  customs  duties  upon  imported 


THE  REPUBLICAN  PARTY  281 

products  equal  to  the  difference  in  the  cost  of  producing 
the  article  in  foreign  countries  and  in  this  country, 
allowing  for  a  reasonable  profit  to  the  home  producer. 
Our  whole  business  structure  rests  on  the  system,  and  the 
wage-earners  dependent  on  it  are  myriad.  The  system 
has  continued  without  a  break  from  the  time  of  the 
Morrill  tariff  in  1861  until  the  present  day,  except 
that  during  the  second  administration  of  Mr.  Cleve- 
land an  attempt  was  made  to  pass  a  revenue  tariff, 
which  failed,  but  resulted  in  the  passage  of  a  tariff 
which  illustrated  no  theory  of  taxation  at  all  and  only 
brought  disaster.  There  was  put  in  force  by  the  Re- 
publicans a  new  tariff  in  1890,  called  the  McKinley 
Tariff,  which  was  repealed  by  the  Gorman- Wilson  Tariff 
of  1893,  which  in  turn  was  repealed  by  the  Dingley 
Tariff  of  1897.  In  the  ten  years  which  have  elapsed 
since  the  enactment  of  the  Dingley  Tariff,  the  condi- 
tions have  so  changed  as  to  make  a  number  of  the 
schedules  under  that  tariff  too  high  and  some  too  low. 
This  renders  it  necessary  to  re-examine  the  schedules  in 
order  that  the  tariff  shall  be  placed  on  a  purely  pro- 
tective basis.  By  that  I  mean  it  should  properly  pro- 
tect, against  foreign  competition,  and  afford  a  rea- 
sonable profit  to  all  manufacturers,  farmers  and  busi- 
ness men,  but  should  not  be  so  high  as  to  furnish  a 
temptation  to  the  formation  of  monopolies  to  appro- 
priate the  undue  profit  of  excessive  rates. 

In  1898  came  the  war  with  Spain.  While  both  parties 
lent  their  aid  in  Congress  and  there  was  an  outburst 
of  patriotism  in  all  sections,  the  war,  for  which  we 
were  so  little  prepared,  had  to  be  conducted  by  the 
Republican  Party.  Whatever  efficiency  was  displayed 
in  its  maintenance  was  due  to  that  Party,  and  the  ability 
with  which  it  could  meet  a  new  issue.    After  the  Spanish 


282  THE  ACHIEVEMENTS  OF 

War,  comparatively  so  short  and  bloodless  in  its  extent, 
there  have  developed  national  questions  for  settlement 
of  greater  importance  than  any  save  those  of  the  great 
Civil  War.  The  Republican  Party  has  marched  up  to 
their  solution  with  the  same  courage,  the  same  skill  and 
the  same  persistence  that  it  has  shown  in  respect  to  all 
the  questions  arising  in  its  history.  After  peace  with 
Spain  was  signed,  Congress  left  to  McKinley  to  pioneer 
in  respect  to  the  government  of  Porto  Rico,  Cuba  and 
the  Philippines,  imposing  only  as  to  the  Cuban  policy 
the  condition  that  there  should  be  an  early  date  for  turn- 
ing over  that  island  to  the  people  of  Cuba  in  accordance 
with  the  self-denying  ordinance  known  as  the  Teller 
resolution.  Congress  did  not  interfere  in  the  Philippines 
for  a  full  four  years,  and  in  that  time  McKinley  had 
worked  out  a  policy  which  substantially  received  the 
full  confirmation  of  Congress  and  to  which  the  Repub- 
lican Party  is  to-day  pledged.  The  policy  of  expan- 
sion is  what  distinguishes  the  administration  of  Mc- 
Kinley and  adds  another  to  the  list  of  patriotic  victories 
of  the  Republican  Party.  By  this  policy  the  United 
States  has  become  a  world  power.  In  the  course  of  it 
we  have  built  up  a  navy,  not  large  enough  as  yet,  but 
large  enough  to  be  respectable  and  to  make  our  influ- 
ence felt  for  peace  and  good  international  morals  the 
world  over. 

In  every  one  of  these  policies  which  I  have  thus  enu- 
merated— in  the  war  of  the  Union — the  building  up 
and  protection  of  the  negro  race  with  the  war  amend- 
ments— in  the  maintenance  of  the  sacredness  of  our 
promises  to  pay  contained  in  the  greenbacks  and  in  the 
national  bonds — in  our  maintenance  of  the  national  in- 
tegrity by  an  adherence  to  the  gold  standard  and  a 
refusal  to  enter  upon   the  free   coinage  of  silver — in 


THE  REPUBLICAN  PARTY  283 

the  support  of  a  policy  of  protection  under  which  our 
manufactures  and  our  farm  productions  have  found  a 
prosperity  never  before  known  in  the  world — in  the 
policy  of  expansion  and  the  development  of  the  un- 
fortunate peoples  intrusted  to  our  care  by  Providence 
— and  in  our  progress  toward  world-wide  influence — we 
have  encountered  the  official  and  persistent  opposition 
of  the  Democratic  Party.  At  times  we  have  been  beaten. 
Only  twice,  however,  in  all  that  remarkable  history  of 
48  years  have  we  lost  the  confidence  of  the  people  of 
the  United  States  to  the  point  of  their  turning  over 
the  government  to  a  Democratic  executive.  I  venture  to 
say  that  neither  in  this  nor  any  other  country  can  be 
disclosed  such  a  remarkable  record  of  arduous  deeds 
done  as  in  that  history  of  a  half  a  century  of  the  Re- 
publican Party. 

By  reason  of  circumstances  I  need  not  detail,  the  in- 
fluence of  the  Republican  Party  has  been  little  felt  south 
of  Mason  and  Dixon's  line.  It  is  true  that  in  Mary- 
land, West  Virginia,  Kentucky  and  Missouri  the  Repub- 
lican Party  has  been  often  in  the  majority,  but  in  the 
other  Southern  States  a  contest  has  seemed  hopeless. 
The  time  has  come,  in  my  judgment,  when  it  is  the  duty 
of  our  party  to  make  an  earnest  effort  to  win  to  our 
support  the  many  Southerners  who  think  with  us  on 
every  living  national  issue  and  have  only  been  kept 
from  our  ranks  by  the  ghost  of  the  past. 

During  the  present  administration  the  Republican 
Party  has  been  called  again  to  meet  a  great  national 
need  and  to  save  the  country  from  a  growing  danger. 
In  the  enormous  industrial  development  and  the  accumu- 
lation of  capital  due  to  the  combination  in  corporate 
form  of  the  wealth  of  the  country,  there  have  arisen 
abuses  which  have  threatened  to  undermine  our  whole 


284  THE  ACHIEVEMENTS  OF 

business  fabric.  The  intense  desire  for  gain,  stimulated 
by  the  prospect  of  enormous  profits,  produced  a  reck- 
less spirit  with  reference  to  the  methods  of  acquisition. 
Official  investigations  have  disclosed  a  lack  of  business 
integrity  on  the  part  of  some  charged  in  a  fiduciary 
capacity  with  the  custody  and  management  of  great  ac- 
cumulations of  capital.  Other  official  investigations 
showed  the  eagerness  with  which  certain  industrial  com- 
binations were  willing  to  use  their  patronage  to  induce 
or  compel  railroad  companies  to  grant  to  them  unjust 
and  secret  discriminations  and  rebates.  The  fact  that 
the  Interstate  Commerce  law  was  violated  with  perfect 
impunity  became  known  to  the  public  at  large,  and  a 
conviction  seized  the  people  that  there  were  many  en- 
gaged in  the  management  of  corporate  wealth  who  re- 
garded the  statutes  of  their  country  as  dead  letters  and 
themselves  as  a  privileged  class.  Their  corrupting  influ- 
ence in  politics  and  in  respect  of  State  and  national 
legislation  was  naturally  becoming  greater  and  greater 
as  their  wealth  grew  and  their  associations  spread.  We 
were  passing  into  a  regime  of  an  irresponsible  plutoc- 
racy. During  the  last  four  years  there  has  been  a 
great  moral  awakening  to  this  danger  among  the  people 
and  a  popular  demand  that  the  lawbreakers — no  matter 
how  wealthy  or  how  high  or  powerful  their  position — 
shall  be  made  to  suffer.  Under  the  leadership  of 
Theodore  Roosevelt  the  Republican  Party  has  not  fal- 
tered in  its  determination  to  meet  the  requirements  of 
this  situation  and  to  enact  such  legislation  as  may  be 
necessary  to  bring  to  a  close  this  period  of  illegitimate 
corporate  immunity. 

At  the  instance  of  the  President  Congress  was  called 
upon  to  pass  an  amendment  to  the  Interstate  Commerce 
law  known  as  the  Rate  Bill.     What  has  been  the  effect 


THE  REPUBLICAN  PARTY  285 

of  the  Rate  Bill?  Everyone  who  knows  anything  about 
the  management  of  railroads  knows  that  there  has  been 
a  revolution  in  respect  to  their  obedience  to  the  law. 
No  longer  are  special  privileges  granted  to  the  few — 
no  longer  are  secret  rebates  extended  to  build  up  the 
monopoly  of  the  trusts.  The  railroads  are  operating 
within  the  law,  and  the  railroad  directors  and  officers 
and  stockholders  ought  to  rise  up  and  call  blessed  the 
men  who  are  responsible  for  the  passage  of  the  Rate 
Bill.  It  may  be  that  it  has  not  reduced  rates  where  it 
was  expected.  It  may  be  that  it  has  not  furnished  lo- 
cal relief  at  various  points,  as  was  hoped,  but  it  has  put 
the  railroad  business  in  this  country  on  an  honest  basis, 
has  eliminated  from  the  operation  of  the  railroads  privi- 
lege and  discrimination,  and  has  enabled  railroad  men  to 
look  their  fellows  in  the  face  without  a  consciousness 
that  they  are  conducting  a  business  in  violation  of  law. 
It  has  put  every  railroad  man  in  the  country  on  his 
good  behavior,  and  has  created  a  complete  change  of 
attitude  on  the  part  of  him  and  of  his  subordinates  in 
respect  to  the  statutes  of  his  country. 

I  am  not  now  speaking  of  what  may  be  accomplished, 
but  what  has  been  accomplished — not  what  the  result  of 
litigation  under  a  new  law  has  been  or  will  be,  but  I 
am  speaking  of  the  result  of  the  movement  which  found 
expression  in  the  passage  of  the  Rate  law. 

Another  policy  proposed  as  a  means  of  regulating 
railway  rates  is  that  of  the  improvement  of  our  national 
waterways.  Much  money  has  been  spent  on  sea  harbors 
and  the  mouths  of  our  rivers  at  the  sea,  but  compara- 
tively little  upon  the  internal  waterways  which  nature 
has  furnished  to  the  country,  and  which  form  highways 
of  travel  from  one  border  of  it  to  the  other.  The  call 
from  the  country  for  the  development  of  a  well-thought- 


THE  ACHIEVEMENTS  OF 

out  plan  for  the  improvement  of  all  these  waterways  is 
so  emphatic  that  it  can  not  longer  be  resisted.  That 
which  has  been  done  is  largely  piece  work.  What  is 
needed  now  is  the  consistent  development  of  this  method 
of  inter-communication,  so  that  a  certain  amount  a  year 
can  be  assigned  to  the  execution  of  the  plan.  The  direct 
effect  in  the  transportation  of  merchandise  will  doubt- 
less be  most  beneficial,  while  the  indirect  effect  of  regu- 
lating and  reducing  excessive  railroad  rates  will  be  even 
of  greater  benefit. 

Other  corporate  abuses  have  been  made  manifest  be- 
sides discrimination  in  rates.  They  consist  in  using  the 
corporate  form  of  investment  to  float  bonds  and  stocks 
whose  par  value  is  far  in  excess  of  the  real  money  value 
invested  in  the  enterprise — a  practice  which,  in  addition 
to  deceiving  and  defrauding  the  public,  involves  conse- 
quences with  reference  to  reckless  corporate  manage- 
ment that  are  most  demoralizing.  Legislation  looking 
to  the  restraint  in  this  regard  of  interstate  commerce 
railways  has  been  recommended  to,  and  doubtless  will 
receive,  the  careful  consideration  and  approval  of  the 
National  Legislature. 

Under  the  stimulus  of  the  revelations  in  respect  to  the 
illegal  combinations  of  wealth  for  purposes  of  monopoly, 
prosecutions  under  the  Interstate  Commerce  law  and  the 
anti-trust  law  by  the  Executive  have  been  important 
and  effective,  and  the  whole  weight  of  the  Republican 
Administration  has  been  thrown  in  favor  of  holding  up 
to  a  strict  compliance  with  the  anti-trust  law  those  who 
in  times  past  had  regarded  it  as  of  no  effect. 

In  the  midst  of  this  reform  movement  for  the  elimina- 
tion from  our  business  methods  of  illegal  monopoly  and 
discrimination,  our  country  has  been  visited  by  a  severe 
financial  panic.     The  panic  was  doubtless  chiefly  due  to 


THE  REPUBLICAN  PARTY  287 

the  exhausting  of  the  free  capital  of  the  world  by  rea- 
son of  the  over-investment  in  enterprises  that  have  not 
been  as  productive  as  expected.  The  enormous  indus- 
trial expansion  had  at  last  tied  up  nearly  all  the  world's 
capital  which  was  available  and  the  new  investments  had 
to  halt.  This  result  was  world-wide.  In  addition  to 
this  general  condition,  the  revelations  concerning  the 
management  of  a  number  of  our  large  corporations 
affected  the  confidence  of  European  investors  in  our 
whole  business  fabric.  Then  our  monetary  system  is  not 
of  such  an  elastic  nature  as  to  meet  the  emergency  pro- 
duced by  sudden  fright  on  the  part  of  the  holders  of 
money,  who  withdraw  it  from  business  uses  and  hoard 
it  against  disaster.  The  result  has  been  an  industrial 
depression  which  we  all  hope  and  believe  from  the  con- 
ditions prevailing  will  be  of  short  duration.  But  those 
who  have  been  made  to  feel  the  lash  of  public  criticism 
by  this  moral  awakening  have  been  quick  to  seize  upon 
and  hold  up  the  panic  as  a  result  of  the  measures  taken 
or  agitated  to  stamp  out  corporate  abuses  and  illegality, 
and  they  have  not  been  slow  most  unjustly  to  attack  the 
Republican  Administration,  and  Mr.  Roosevelt  at  its 
head,  as  the  responsible  authors  of  this  industrial  de- 
pression. There  are  those  who  have  been  members  of 
the  Republican  party  who  differ  with  Mr.  Roosevelt 
in  respect  to  the  proper  course  to  be  taken  in  stamping 
out  these  abuses  of  corporate  wealth.  The  great  bulk  of 
the  Republican  Party,  however,  stands  solidly  at  his 
back  in  the  work  which  he  and  the  representatives  of  the 
party  in  Congress  are  doing. 

His  recent  message,  urging  the  reenactment  of  the 
employers'  liability  act,  which,  because  of  bungling  lan- 
guage, was  declared  unconstitutional,  and  asking  addi- 
tional power  for  the  interstate  commerce   commission, 


288  THE  ACHIEVEMENTS  OF 

has  given  rise  in  certain  quarters  to  much  criticism.  I 
have  read  the  message  with  care,  and  I  am  bound  to  say 
that  the  measures  which  he  recommends  to  Congress,  and 
the  position  he  takes  with  respect  to  them,  are  all  of  a 
most  conservative  character.  His  position  in  favor  of  a 
general  employers'  liability  act,  which  shall  put  the 
burden  of  the  trade  risk  upon  the  employer,  except 
where  the  injury  is  due  solely  to  the  negligence  of  the 
employee,  is  in  the  line  of  the  best  considered  modern 
legislation  of  Europe  and  England.  It  will  secure  uni- 
formity and  reasonableness  of  compensation  for  the 
family  of  the  deceased  or  injured  employee,  instead  of 
the  inequalities  and  uncertainties  of  court  trials,  which 
under  our  present  system  give  excessive  damages  to  some 
and  deny  any  recovery  to  others  equally  meritorious. 
The  President  stands  forth  stoutly  for  the  power  of  the 
Courts  and  the  efficacy  of  their  orders,  but  properly 
calls  attention  to  the  abuses  to  which  the  reckless  issu- 
ing of  ex  parte  injunctions  in  labor  cases  has  given  rise. 

The  message  contains  an  answer  to  the  charges  made 
that  the  Administration  is  responsible  for  the  industrial 
depression  which  has  followed;  and  the  sharpness  and 
emphasis  with  which  this  unfounded  attack  is  met,  have 
heartened  the  great  body  of  the  people  as  by  a  bugle 
call  to  renewed  support  of  the  policies  of  this  Adminis- 
tration. 

From  beginning  to  the  end  the  message  shows  his 
earnest  desire  to  protect  the  honest  business  man  and 
the  honest  laborer,  and  to  secure  to  them  the  possibility 
of  living  under  an  equal  administration  of  the  law.  He 
would  not  destroy  or  injure  the  stock  of  innocent  hold- 
ers for  value  though  it  had  its  inception  in  the  mach- 
inations of  unprincipled  promoters ;  but  he  would  make 
the    law    to    prevent    a    recurrence    of    such    methods, 


THE  REPUBLICAN  PARTY  289 

He  takes  the  utmost  pains  to  point  out  that  railroads 
should  be  relieved  from  the  restrictions  of  the  anti-trust 
law,  and  that  that  law  should  be  amended  so  as  to  give 
greater  freedom  for  corporate  action  in  combinations 
that  are  not  hurtful  to  the  public.  No  man  can  find 
within  the  four  corners  of  the  message  anything  to 
shake  in  the  slightest  the  guaranties  of  life,  liberty  and 
property  secured  by  the  Constitution.  The  measures  he 
recommends,  and  the  positions  that  he  takes,  are  in  ac- 
cord with  the  conservative  position  of  the  Republican 
party  which  has  ever  looked  upon  the  right  of  property 
as  only  less  sacred  than  the  right  of  liberty,  and  which 
has  ever  made  the  goal  of  all  its  efforts  the  equal  pro- 
tection of  the  laws. 

Vigorous  action  and  measures  to  stamp  out  existing 
abuses  and  effect  reforms  are  necessary  to  vindicate 
society  as  at  present  constituted.  Otherwise,  we  must 
yield  to  those  who  seek  to  introduce  a  new  order  of 
things  on  a  socialistic  basis. 

The  Republican  Party  follows  the  Administration 
upon  this  social  and  moral  reform — approves  its  atti- 
tude in  favor  of  vested  rights,  of  maintaining  the  power 
of  the  courts,  of  rendering  more  equal  by  legislation  the 
basis  of  dealing  between  employer  and  employee,  of 
strengthening  the  regulative  power  over  railroads  and 
other  interstate  corporations,  and  of  prosecuting  those 
lawbreakers  who  continue  to  defy  public  opinion.  Roose- 
velt leads  his  party  as  Lincoln  led  his — as  McKinley 
led  his — to  meet  the  new  issues  presented^  to  arm  our 
present  civilization,  and  fit  it  with  a  bold  front  to  re- 
sist the  attacks  of  socialism,  and  to  transmit  to  the  com- 
ing generations  unharmed  the  great  institutions  of 
civil  liberty  inherited  from  our  fathers. 


RECENT  CRITICISM  OF  THE  FEDERAL 
JUDICIARY 

DELIVERED     BEFORE     THE     AMERICAN     BAR     ASSOCIATION, 
DETROIT,   MICHIGAN,   AUGUST    28,   1895 

Within  the  last  four  years,  the  governors  of  five  or 
more  States  have  thought  it  proper  in  official  messages 
to  declare  that  the  Federal  courts  have  seized  jurisdic- 
tion not  rightly  theirs,  and  have  exercised  it  to  the  detri- 
ment of  the  Republic,  and  to  urge  their  respective  legis- 
latures to  petition  Congress  for  remedial  action  to  pre- 
vent future  usurpation.  One  legislature  did  present  a 
memorial  to  Congress  reciting  the  grievances  of  the 
people  of  its  State  against  the  Federal  judiciary  and 
asking  a  curtailment  of  the  powers  unlawfully  assumed 
by  them. 

The  principal  charge  against  the  Federal  courts, 
which  an  examination  of  these  documents  discloses,  is 
that  they  have  flagrantly  usurped  jurisdiction,  first,  to 
protect  corporations  and  perpetuate  their  many  abuses, 
and  second,  to  oppress  and  destroy  the  power  of  or- 
ganized labor. 

These  charges  against  the  Federal  judiciary  have 
not  been  confined  to  messages  from  State  governors. 
They  also  come  from  persons  who,  although  not  holding 
high  office,  have  a  standing  before  the  bar  which  entitles 
them  to  respectful  attention.  Much  of  what  is  found 
in  the  official  communications  I  have  referred  to  con- 
cerning the  treatment  of  corporations  by  the  Federal 
courts  has  taken  form  from  the  articles  and  addresses 
of  the  editor  of  the  American  Law  Review.     This  gen- 

290 


CRITICISM  OF  FEDERAL  JUDICIARY      291 

tleman,  well-known  as  an  able  and  prominent  law-text 
writer,  has  given  much  attention  to  the  Federal  decisions 
on  corporate  matters  and  has  expressed  his  condemna- 
tion of  many  of  them  in  language  that  has  lacked  noth- 
ing in  freedom,  emphasis  or  rhetorical  figure. 

The  one  judicial  system  to  which  all  the  members  of 
this  Association  bear  the  same  relation  is  that  of  the 
United  States,  and  when  I  was  honored  with  an  in- 
vitation to  address  them  it  at  once  occurred  to  me  that 
I  might  properly  ask  their  attention  to  a  temperate 
discussion  of  the  justice  of  these  criticisms. 

I  have  since  been  oppressed  with  the  thought  that 
the  theme  might  with  more  propriety  be  left  to  one 
having  no  official  relation  to  the  Federal  courts,  but 
circumstances  have  prevented  any  change  from  my 
original  impulse.  I  can  only  hope  that  my  recent  ad- 
mission to  the  inferior  ranks  of  the  Federal  judiciary 
and  my  humble  position  therein  will  prevent  the  sug- 
gestion that  what  is  here  to  be  said  has  anything  in  it 
either  of  a  personal  defense  or  of  a  quasi  official 
character. 

The  opportunity  freely  and  publicly  to  criticise  ju- 
dicial action  is  of  vastly  more  importance  to  the  body 
politic  than  the  immunity  of  courts  and  judges  from 
unjust  aspersions  and  attack.  Nothing  tends  more  to 
render  judges  careful  in  their  decisions  and  anxiously 
solicitous  to  do  exact  justice  than  the  consciousness  that 
every  act  of  theirs  is  to  be  subjected  to  the  intelligent 
scrutiny  and  candid  criticism  of  their  fellowmen.  Such 
criticism  is  beneficial  in  proportion  as  it  is  fair,  dis- 
passionate, discriminating  and  based  on  a  knowledge  of 
sound  legal  principles.  The  comments  made  by  learned 
text  writers  and  by  the  acute  editors  of  the  various  law 
reviews    upon   judicial   decisions    are    therefore   highly 


292  RECENT  CRITICISM  OF 

useful.  Such  critics  constitute  more  or  less  impartial 
tribunals  of  professional  opinion  before  which  each 
judgment  is  made  to  stand  or  fall  on  its  merits  and  thus 
exert  a  strong  influence  to  secure  uniformity  of  de- 
cision. But  non-professional  criticism  is  by  no  means 
without  its  uses,  even  if  accompanied,  as  it  often  is,  by  a 
direct  attack  upon  the  judicial  fairness  and  motives  of 
the  occupants  of  the  bench;  for  if  the  law  is  but  the 
essence  of  common  sense,  the  protest  of  many  average 
men  may  evidence  a  defect  in  a  judicial  conclusion 
though  based  on  the  nicest  legal  reasoning  and  pro- 
foundest  learning.  The  two  important  elements  of 
moral  character  in  a  judge  are  an  earnest  desire  to  reach 
a  just  conclusion  and  courage  to  enforce  it.  In  so  far 
as  fear  of  public  comment  does  not  affect  the  courage  of 
a  judge  but  only  spurs  him  on  to  search  his  conscience 
and  to  reach  the  result  which  approves  itself  to  his  in- 
most heart,  such  comment  serves  a  useful  purpose. 
There  are  few  men,  whether  they  are  judges  for  life  or 
for  a  shorter  term,  who  do  not  prefer  to  earn  and  hold 
the  respect  of  all,  and  who  can  not  be  reached  and  made 
to  pause  and  deliberate  by  hostile  public  criticism.  In 
the  case  of  judges  having  a  life  tenure,  indeed,  their 
very  independence  makes  the  right  freely  to  comment  on 
their  decisions  of  greater  importance  because  it  is  the 
only  practical  and  available  instrument  in  the  hands  of 
a  free  people  to  keep  such  judges  alive  to  the  reasonable 
demands  of  those  they  serve. 

On  the  other  hand,  the  danger  of  destroying  the 
proper  influence  of  judicial  decisions  by  creating  un- 
founded prejudices  against  the  courts,  justifies  and  re- 
quires that  unjust  attacks  shall  be  met  and  answered. 
Courts  must  ultimately  rest  their  defense  upon  the  in- 
herent   strength   of   the   opinions    they   deliver    as   the 


THE  FEDERAL  JUDICIARY  293 

ground  for  their  conclusions  and  must  trust  to  the  calm 
and  deliberate  judgment  of  all  the  people  as  their  best 
vindication.  But  the  bar  has  much  to  do  with  the 
formation  of  that  opinion  and  a  discussion  before  them 
may  sometimes  contain  suggestions  which  bear  good 
fruit. 

Many  persons  whose  good  opinion  is  a  high  compli- 
ment regard  the  Federal  judiciary  with  so  much  favor 
that  they  would  deprecate  a  consideration  of  the  criti- 
cisms already  stated  as  likely  to  give  an  importance 
to  them  they  do  not  deserve.  I  can  not  concur  in  this 
view.  I  believe  that  in  large  sections  of  this  country 
there  are  many  sincere  and  honest  citizens  who  credit  all 
that  has  been  said  against  the  Federal  courts,  and  that 
it  is  of  much  importance  that  the  reasons  for  the  exist- 
ence of  these  criticisms  and  their  injustice  be  pointed 
out. 

It  is  not  unfair  to  those  governors  who  are  the  chief 
accusers  of  the  Federal  judiciary  to  say  that  they 
knew  they  were  not  speaking  as  they  did  to  unwilling 
ears.  They  were  merely  putting  into  language  the 
hostile  feeling  of  certain  of  their  constituents  toward 
the  Federal  courts,  and  but  for  such  feeling  the  criti- 
cisms would  hardly  have  been  uttered.  It  will,  there- 
fore, in  a  large  measure  account  for  such  criticisms  if 
we  account  for  the  popular  sentiment  they  were  made 
to  satisfy. 

It  will  be  my  endeavor,  therefore,  first  to  show  that 
much,  if  not  all,  of  the  present  hostility  to  the  Federal 
courts  in  certain  parts  of  the  country  and  among  cer- 
tain groups  of  the  people  can  be  traced  to  causes  over 
which  those  courts  can  exercise  no  control,  and  is  neces- 
sarily due  to  the  character  of  the  jurisdiction  with 
which  they  are  vested  and  not  to  injustice  in  its  exer- 


294  RECENT  CRITICISM  OF 

cise ;  and  second,  that  the  criticisms  which  such  hostility- 
has  engendered  are  in  themselves  without  foundation. 

The  history  of  the  Federal  courts  since  their  begin- 
ning is  full  of  instances  where  the  exercise  of  their 
jurisdiction  has  involved  them  in  popular  controversies 
and  has  brought  down  upon  them  the  bitter  assaults 
of  those  unfavorably  affected  by  their  decisions.  Yet 
the  event  has  justified  their  course  and  shown  the  in- 
justice of  the  attacks. 

The  Federal  Constitution  was  framed  to  create  a  na- 
tional government  with  limited  powers  and  to  mark  the 
line  between  its  jurisdiction  on  the  one  hand  and  that  of 
the  States  and  the  people  on  the  other.  By  virtue  of  its 
eighth  article  the  State  courts  and  a  fortiori  the  Federal 
courts  were  vested  with  the  power  and  charged  with  the 
duty  in  judicial  cases  arising  before  them  of  ignoring 
State  laws  in  conflict  with  the  Federal  Constitution. 
By  necessary  implication  their  obedience  to  the  funda- 
mental law  also  required  them  to  ignore  acts  of  Congress 
which  were  so  plainly  in  violation  of  the  Constitution 
that  even  the  necessary  and  high  respect  due  to  the 
construction  by  Congress  of  its  own  powers  could  not 
give  such  acts  the  force  of  law. 

The  Federal  judiciary  at  once  became  the  arbiter  in 
the  first  great  political  controversy  of  the  United 
States,  and  one  which  is  continually  reappearing  in 
various  forms.  The  general  language  of  the  Constitu- 
tion required  construction  to  apply  it  to  judicial  cases 
arising  in  the  organization  and  maintenance  of  the 
government.  The  two  parties  which  had  engaged  in 
heated  controversy  over  the  adoption  of  the  covenant  at 
all  continued  it  over  its  narrow  or  broad  interpretation. 
The  Supreme  Court  in  the  beginning  was  made  up 
largely  of  men  whose  predilection  was  for  a  liberal  con- 


THE  FEDERAL  JUDICIARY  295 

struction  and  who  believed  thoroughly  in  the  national 
idea.  This  was  soon  manifest  in  their  decisions,  which 
called  down  upon  the  court  the  anathemas  of  the  strict 
constructionists,  whose  great  effort  it  thereupon  became 
to  weaken  the  power  of  the  judiciary.  It  was  attempted 
to  control  their  independence  by  making  very  wide  the 
grounds  for  impeachment.  The  great  Chief  Justice 
was  constantly  threatened  with  this  fate  by  partisans 
and  the  attacks  upon  his  alleged  usurpations  were  fre- 
quent and  fierce.  Jefferson's  severe  words  concerning 
the  Federal  judiciary,  now  so  often  quoted  by  their 
latter-day  critics,  were  written  in  1820  and  were  pro- 
voked by  the  decision  in  Cohens  vs.  Virginia,  reaffirm- 
ing the  power  of  the  Supreme  Court  of  the  United 
States  to  reverse  the  decision  of  the  Supreme  Court  of  a 
State  on  the  validity  of  a  State  law  under  the  Federal 
Constitution.  It  is  not  surprising  that  he  who  had  in- 
spired the  Kentucky  resolutions  of  1798  declaring  the 
right  of  a  State  to  decline  compliance  with  a  Federal 
law  deemed  by  it  to  be  in  conflict  with  the  fundamental 
compact,  should  regard  the  Federalist  Supreme  Court 
which  itself  asserted  the  right  finally  to  decide  such  a 
question,  as  "  a  thief  of  jurisdiction." 

Upon  political  questions,  and  such  are  those  arising 
in  the  construction  of  a  political  charter,  there  always 
have  been  and  always  will  be  differences  of  opinion. 
There  is  frequently  no  absolute  standard,  even  a  century 
after,  in  deciding  the  abstract  right  of  them.  We  must 
be  content  to  abide  the  result  reached  by  the  verdict  and 
acquiescence  of  the  people  whose  interests  were  involved. 
Before  this  tribunal,  the  position  of  John  Marshall  and 
his  associates  on  the  Supreme  Bench  has  been  vindicated 
and  the  criticisms  of  Thomas  Jefferson  have  been  re- 
futed. 


296  RECENT  CRITICISM  OF 

Beginning  then  as  arbiters  in  a  political  conflict  and 
wielding  similar  powers  until  to-day,  the  Federal  ju- 
diciary have  never  enjoyed  immunity  from  hostile  at- 
tack upon  their  conduct  or  their  motives.  The  great 
controversy  over  the  fugitive  slave  law  needs  no  recount- 
ing here.  In  the  eyes  of  the  abolitionists  the  Federal 
courts  and  their  marshals  were  instruments  of  hell  in  en- 
forcing the  law,  and  yet  there  could  not  be  the  slightest 
doubt  that  such  a  jurisdiction  was  plainly  within  the 
Constitution. 

The  change  of  feeling  toward  the  Federal  courts  be- 
cause of  the  change  in  their  jurisdiction  with  respect  to 
the  negro  race  affords  an  apt  illustration  of  how  mere 
jurisdiction  may  affect  the  popular  feeling  toward  a 
court.  Before  the  war  the  Southern  people  had  not 
looked  with  disfavor  upon  courts  which  did  so  much  to 
preserve  their  property,  while  at  the  same  time  the 
abolitionists  regarded  them  with  aversion.  After  the 
war,  when,  for  the  protection  of  the  negro  in  his  elec- 
toral and  civil  rights,  the  election  and  civil  rights  bills 
were  passed  and  their  enforcement  was  given  to  the 
Federal  courts,  they  became  at  the  same  time  the  ob- 
jects of  hatred  and  condemnation  at  the  South  and  the 
great  reliance  of  those  who  had  been  abolitionists  at  the 
North.  Now  that  both  parties  have  wisely  decided  to 
let  the  election  problem  work  itself  out  and  to  await 
the  local  solution  which  the  results  of  fraud  and  violence 
in  elections  will  compel,  the  feeling  of  hostility  at  the 
South  against  the  Federal  judiciary  has  greatly  abated. 

This  is  but  one  of  many  historical  instances  showing 
how  the  Federal  courts  may  be  subjected  to  the  most 
severe  criticism  without  just  grounds  merely  because  of 
the  character  of  their  jurisdiction. 

I  come  now   to   review   the  reasons   why  their  mere 


THE  FEDERAL  JUDICIARY  297 

jurisdiction  has  created  a  deep  impression  in  many 
parts  of  the  country  that  the  evils  due  to  corporations 
are  fostered  by  them. 

The  last  two  generations  have  witnessed  a  marvelous 
material  development.  It  has  been  effected  by  the  or- 
ganization and  enforced  cooperation  of  simple  elements 
that  for  a  long  time  previous  had  been  separately  used. 
The  organization  of  powerful  machines  or  of  delicate 
devices,  by  which  the  producing  power  of  one  man  was 
increased  fifty  or  one  hundred  fold,  was,  however,  not 
the  only  step  in  this  great  progress.  The  aim  of  all 
material  civilization  in  its  hard  contest  with  nature  was 
the  reduction  of  the  cost  of  production,  because  thereby 
each  man's  day's  work  netted  him  more  of  the  com- 
forts of  life.  Within  the  limits  of  efficient  administra- 
tion the  larger  the  amount  to  be  produced  at  one  time 
and  under  one  management,  the  less  the  expense  per 
unit.  Therefore,  the  aggregation  of  capital,  the  other 
essential  element  with  labor  in  producing  anything,  be- 
came an  obvious  means  of  securing  economy  in  the 
manufacture  of  everything.  Corporations  had  long 
been  known  as  convenient  commercial  instruments  for 
securing  and  wielding  efficiently  such  aggregations  of 
capital.  Charters  were  at  first  conferred  by  special  act 
upon  particular  individuals  and  with  varying  powers, 
but  so  great  became  the  advantage  of  incorporation, 
with  the  facility  afforded  for  managing  great  enter- 
prises and  the  limitation  of  the  liability  of  investors, 
that  it  was  deemed  wise  in  this  country?  in  order  to  pre- 
vent favoritism,  to  create  corporations  by  general  laws 
and  thus  to  afford  to  all  who  wished  it  the  opportunity 
of  assuming  a  corporate  character  in  accordance  there- 
with. The  result  was  a  great  increase  in  the  number 
of  the  corporations  and  the  assumption  of  the  corpo- 


298  RECENT  CRITICISM  OF 

rate  form  by  seven-eighths  of  the  active  capital  of  the 
country.  The  great  saving  in  the  cost  of  production 
brought  about  by  mechanical  inventions  and  the  or- 
ganization of  capital  worked  incalculable  benefit  to  the 
public,  but  the  necessary  price  of  it  under  our  system 
of  free  right  of  contract  and  inviolable  rights  of  pri- 
vate property  was  a  division  of  the  profit  between  those 
who  were  to  consume  the  product  and  those  whose  minds 
conceived  and  whose  hands  executed  the  work  of  produc- 
tion. The  total  wealth  of  the  whole  country  was  thus 
enormously  increased,  but  of  the  increase  more  was 
necessarily  accumulated  in  some  hands  than  others.  In 
the  general  prosperity  caused  by  the  revolution  in 
methods  of  production,  captains  of  industry  amassed 
fabulous  fortunes,  and  the  aggregations  of  capital  under 
corporate  management  became  so  great  as  to  stagger 
the  imagination.  In  the  mad  rush  for  money  which 
previous  successes  had  stimulated,  it  is  not  to  be  won- 
dered at  that  some  of  the  accumulated  wealth  was  cor- 
ruptly used  to  secure  undue  business  advantages  from 
legislative  and  executive  sources  and  that  many  of  the 
political  agencies  of  the  people  became  tainted.  The 
impersonal  character  of  corporations  afforded  a  free- 
dom from  that  restraint  in  the  use  of  money  for  political 
corruption  which  is  often  present  when  the  would-be 
briber  is  an  individual.  Men  of  good  repute,  with  com- 
placence and  intentional  ignorance,  acquiesced  in  the 
use  of  corporate  funds  to  buy  legislators  and  council- 
men  in  the  corporate  interest,  when  they  would  not  wish 
or  dare  to  adopt  such  methods  in  their  individual  busi- 
ness. The  enormous  increase  in  corporate  wealth  fur- 
nished the  means  of  corruption,  and  the  prospect  of  ill- 
gotten  gains  attracted  the  dishonest  trickster  into  poli- 
tics and  debauched  the  weak,  while  the  honest  and  cour- 


THE  FEDERAL  JUDICIARY  299 

ageous  were  often  driven  into  private  life.  The  genie 
of  corruption  in  politics  which  the  corporations  called 
up  has  lived  to  plague  them,  and  although  many  great 
companies  have  secured  all  they  wish  from  legislative 
bodies,  they  are  regarded  by  the  political  blackmailers 
as  fair  game  and  the  corruption  fund  is  still  maintained 
to  prevent  oppression.  The  people  not  unjustly  have 
charged  these  public  evils  to  the  management  of  cor- 
porations. 

Another  evil  has  been  the  injustice  done  to  the  real 
owners  of  corporate  property  by  the  reckless  and  dis- 
honest management  of  its  nominal  owners.  The  great 
liberality  of  the  general  laws  for  the  formation  of  cor- 
porations and  the  entire  failure  to  exercise  any  strin- 
gent visitorial  powers  over  them  have  enabled  the  active 
promoters  and  managers  of  large  enterprises  carried 
on  at  a  distance  from  the  homes  of  the  real  owners,  to 
increase  the  corporate  indebtedness  and  capital  stock  so 
far  beyond  any  fair  valuation  of  their  property  as  to 
put  the  entire  control  of  it  in  the  hands  of  the  holders 
of  worthless  stock  who  have  nothing  at  stake  in  the 
corporate  success. 

The  real  owners,  the  bondholders,  are  at  the  mercy 
of  this  irresponsible  management  till  insolvency  comes. 
The  reckless  business  methods  which  such  an  irrespon- 
sibility and  lack  of  supervision  invite  create  an  un- 
healthy and  feverish  competition  in  every  market, 
wholly  unrestrained  by  the  natural  caution  which  the 
real  owner  of  a  business  must  feel.  The  concern  is 
kept  going  with  no  hope  of  legitimate  profit,  but  simply 
to  pay  large  salaries  or  to  favor  unduly  some  other  en- 
terprise in  which  the  managers  have  a  real  interest. 

Another  reason  for  popular  distrust  of  corporate 
methods  is  the  use  by  corporations  of  great  amounts  of 


300  RECENT  CRITICISM  OF 

capital  to  monopolize  and  control  particular  industries. 
It  is  my  sincere  belief  that  no  such  control  or  monopoly 
can  be  maintained  permanently  unless  it  is  buttressed  by 
positive  legislation  giving  an  undue  advantage  over  the 
public  and  competitors.  Of  course,  by  close  business 
methods  and  by  improving  all  the  economical  advantages 
which  the  manufacture  of  a  commodity  on  an  enormous 
scale  affords,  the  cost  of  production  may  be  so  reduced 
as  to  discourage  competition  on  a  smaller  scale,  but  un- 
less the  fear  of  it  performs  the  same  useful  office  for  the 
benefit  of  the  public  by  continuing  the  lowest  profitable 
prices,  actual  competition  will  certainly  appear.  What- 
ever the  fate  such  trusts  may  ultimately  have,  it  has 
often  happened  that  in  their  formation  and  early  his- 
tory the  plan  adopted  has  been  the  forced  buying  out 
of  every  competitor  or  his  ruin  by  underselling  him  at 
heavy  loss,  so  as  to  put  the  public  and  the  market  for  a 
time  at  least  at  the  mercy  of  one  greedy  corporate 
concern.  Such  methods  and  such  a  result  naturally 
fill  the  people  with  anxious  fears  and  a  hostile  feeling 
toward  aggregations  of  corporate  wealth. 

In  spite  of  these  well-known  evils  nothing  can  be 
clearer  to  a  calm,  intelligent  thinker  than  that  under 
conditions  of  modern  society,  corporations  are  indis- 
pensable both  to  the  further  material  progress  of  this 
country  and  to  the  maintenance  of  that  we  have  en- 
joyed. The  evils  must  be  remedied,  but  not  by  destroy- 
ing one  of  the  greatest  instruments  for  good  that  social 
man  has  devised.  Nevertheless,  so  strong  has  the  hos- 
tility to  corporations  become,  especially  in  certain  of 
the  southern  and  western  States  where  the  agricultural 
community  is  large,  life  is  hard  and  wealth  is  rare,  that 
any  plan  which  can  be  contrived  to  diminish  the 
property  of  corporations  or  to  cripple  their  efficiency 


THE  FEDERAL  JUDICIARY  301 

seems  to  meet  with  favor.  The  feeling  is  especially  di- 
rected against  the  railway  corporations,  although  with- 
out their  aid  and  presence  these  very  communities  would 
be  helpless  and  poor  indeed. 

The  last  decade  in  Europe  has  been  prolific  of  doc- 
trines and  theories  for  the  amelioration  of  the  human 
race  by  the  abolition  of  private  property  and  private 
capital  by  the  vesting  of  all  the  means  of  production  in 
the  government,  for  the  benefit  of  all  the  people,  and 
by  the  distribution  of  the  product  according  to  fixed 
standards  of  merit.  While  socialism,  as  such,  has  not 
obtained  much  of  a  foothold  in  this  country,  even  in 
those  sections  already  referred  to,  schemes  which  are 
necessarily  socialistic  in  their  nature  are  accepted 
planks  in  the  platform  of  a  large  political  party.  The 
underlying  principle  of  such  schemes  is  that  it  is  the 
duty  of  the  government  to  equalize  the  inequalities  which 
the  rights  of  free  contract  and  private  property  have 
brought  about,  and  by  enormous  outlay,  derived  as  far  as 
possible  from  the  rich,  to  afford  occupation  and  suste- 
nance to  the  poor.  However  disguised  such  plans  of 
social  and  governmental  reform  are,  they  find  their  sup- 
port in  the  willingness  of  their  advocates  to  transfer 
without  any  compensation  from  one  who  has  acquired, 
a  large  part  of  his  acquisition  to  those  who  have  been 
less  prudent,  energetic  and  fortunate.  This,  of  course, 
involves  confiscation  and  the  destruction  of  the  principle 
of  private  property. 

Under  the  Fourteenth  Amendment  the  question 
whether  legislation  and  State  action  deprive  any  person 
of  his  property  without  due  process  of  law  has  become 
a  Federal  one,  and  by  the  Act  of  1875  it  is  cognizable 
by  the  Circuit  Courts  of  the  United  States. 

The  prejudices  above  adverted  to  have  led  to  much 


RECENT  CRITICISM  OF 

legislation  hostile  to  corporations  both  resident  and  non- 
resident. It  takes  the  forms  of  discriminating  taxation, 
of  the  regulation  of  rates  to  be  charged  by  those  com- 
panies engaged  in  quasi  public  business  and  sometimes 
of  the  direct  deprivation  of  vested  rights.  In  all  such 
cases  resort  is  at  once  had  to  the  inferior  Federal  courts 
by  the  corporations  injuriously  affected,  to  test  the 
validity  of  the  State's  action,  and  it  not  infrequently 
happens  that  it  becomes  the  duty  of  such  courts  to  de- 
clare void  the  legislation  involved  and  to  enjoin  State 
officers  from  seizing  or  injuring  the  property  of  cor- 
porations under  its  provisions.  Such  a  decision  in  a  cor- 
poration-hating community  at  once  tends  to  mark  the 
Federal  courts  as  friends  and  protectors  of  corpora- 
tions. 

The  repeated  efforts  of  different  State  legislatures  to 
impose  restrictions  upon  interstate  commerce  to  secure 
some  apparent  advantage  to  their  own  constituents,  evi- 
dence the  profound  wisdom  of  the  framers  of  the  Con- 
stitution in  vesting  complete  control  thereof  in  the  na- 
tional government,  but  the  tribunals  whose  jurisdiction 
is  constantly  invoked  judicially  to  declare  void  all  such 
legislation  do  not  for  the  time  commend  themselves  to 
the  favor  either  of  those  who  urged  its  passage  or  of 
those  who  were  to  profit  by  its  operation,  and  the  fact 
that  the  complainant  in  such  litigation  is  frequently  a 
railroad  or  transportation  company  only  confirms  the 
view  of  the  undue  favor  of  these  courts  to  such  litigants. 

The  jurisdiction  of  the  Federal  judiciary  does  not  end 
with  the  enforcement  of  national  laws  in  the  interest  of 
the  whole  country  against  the  temporary  interest  of  a 
part.  They  are  also  required  to  administer  justice  be- 
tween the  citizens  of  different  States.  It  goes  without 
saying  that  this  judicial  power  was  given  to  prevent  the 


THE  FEDERAL  JUDICIARY  303 

possibility  of  injustice  from  local  prejudice  and  not  be- 
cause in  every  case  it  was  supposed  to  exist.  The  en- 
tire jurisdiction  rests  on  the  exceptional  instances,  for 
in  a  great  majority  of  cases  the  same  results  would  cer- 
tainly be  reached  in  the  courts  of  the  State  as  in  the 
Federal  courts.  But  in  those  courts  or  States  where 
there  is  real  danger  from  prejudice  against  a  stranger, 
the  same  cause  which  is  likely  to  obstruct  justice  for 
the  foreign  suitor  creates  a  local  feeling  of  resentment 
against  the  tribunal  established  to  defeat  its  effect. 

The  capital  invested  in  great  enterprises  in  the  South 
and  West  is  owned  in  the  East  or  abroad,  and  the  cor- 
porations which  use  it  are  therefore  frequently  or- 
ganized in  a  different  State  from  that  in  which  the  in- 
vestment is  made.  Such  companies  all  carry  their  liti- 
gation into  the  Federal  courts  on  the  ground  of  diverse 
citizenship  with  the  opposing  party,  and,  in  view  of 
the  deep-seated  prejudice  entertained  against  them  by 
the  local  population,  it  is  not  surprising  that  they  do. 
That  in  most,  if  not  in  all,  cases  the  feeling  that 
prompts  this  avoidance  of  the  State  courts  does  great 
injustice  to  the  State  judiciary  is  undoubtedly  true.  In 
jury  trials,  however,  the  fear  of  injustice  from  local 
prejudice  is  certainly  sometimes  justified.  In  these 
same  States  where  the  narrow  provincial  spirit  is  strong 
and  local  prejudices  exist,  there  is  deep  fear  of  the  abuse 
of  judicial  power  and  the  legislation  of  the  State  is 
directed  to  minimizing  the  influence  and  control  of  the 
judge  over  the  action  and  deliberation  of  the  jury.  The 
extent  to  which  this  is  carried  was  clearly  set  forth  in  an 
interesting  address  delivered  before  this  Association  by 
Mr.  Justice  Brown  some  years  ago.  The  slightest  cir- 
cumstance, although  furnishing  but  a  scintilla  of  evi- 
dence to  support  the   contention  of  either  party,   re- 


304  RECENT  CRITICISM  OF 

quires  the  submission  of  the  case  to  the  jury.  The 
office  of  a  judge  is  reduced  to  that  of  a  mere  moderator 
of  the  trial.  He  is  only  permitted  to  lay  down  a  few 
general  principles  of  law  in  advance  of  the  argument, 
while  the  application  of  them  to  the  facts  of  the  case 
and  conflicting  evidence  is  really  committed  to  the  zeal 
of  contending  counsel.  The  tendency  of  such  procedure 
is  to  leave  to  the  unrestrained  impulses  of  the  jury  the 
settlement  of  all  the  issues  of  the  case.  Though  the  in- 
justice likely  to  result  to  corporations  from  this  pro- 
cedure is  manifest,  the  people  of  a  locality  where  local 
prejudice  exists  have  come  to  think  that  they  have  a 
vested  right  to  the  chances  of  success  which  it  gives 
them  in  a  suit  against  such  opponents.  When,  there- 
fore, in  controversies  with  corporations  of  other  States, 
they  are  carried  before  a  court  in  which  the  jury  are 
not  their  friends  and  neighbors  and  in  which  the  power 
is  given  to  the  judge  to  direct  a  verdict  when  the  evi- 
dence for  either  party  is  so  slight  that  a  contrary  ver- 
dict must  be  set  aside,  to  comment  on  the  evidence,  to 
apply  the  law  thereto,  and  to  make  plain,  if  need  be, 
what  the  legal  sophistries  of  counsel  and  their  inac- 
curate statements  of  the  evidence  may  have  obscured, 
they  feel  that  they  are  in  a  tribunal  which  they  should 
avoid  and  which  the  corporation  should  naturally  seek. 
The  constant  struggle  of  most  corporations  to  avoid 
State  tribunals  in  the  sections  of  the  country  referred 
to,  and  to  secure  a  Federal  forum,  even  though  it  is 
followed  by  only  limited  success  in  the  result  of  the 
litigation,  is  chiefly  the  cause  for  the  popular  impres- 
sion in  those  States  that  the  Federal  courts  are  the 
friends  of  corporations  and  protectors  of  their  abuses. 

Those  abuses,  however,  really  find  their  chief  cause  in 
political  corruption,  which  it  is  wholly  beyond  the  power 


THE  FEDERAL  JUDICIARY  305 

of  the  Federal  courts  to  prevent  or  eradicate.  Too  fre- 
quently the  popular  impulse  is  to  remedy  or  punish  the 
evil  by  giving  judgment  against  the  great  corporations 
in  every  case,  no  matter  what  the  particular  issues  or 
facts  are,  on  the  ground  that  the  corporation  has  prob- 
ably increased  its  capital  or  attained  its  success  by  cor- 
rupt methods.  It  is  hardly  necessary  to  point  out  that 
this  mode  of  punishment  by  forfeiture  and  chance  dis- 
tribution can  not  be  countenanced  in  a  court  of  justice, 
however  meritorious  the  cause  of  complaint  upon  which 
it  is  founded. 

Corporate  corruption  can  not  be  directly  punished 
in  the  Federal  courts,  because  the  bribery  of  which  many 
corporations  are  guilty  is  most  difficult  of  legal  proof, 
and  crimes  of  this  character  are  usually  committed 
against  the  State,  so  that  Federal  courts  have  no  cog- 
nizance of  them.  It  has  been  wisely  settled  by  the  ad- 
judication of  all  courts,  State  and  Federal,  that  the 
evils  resulting  from  vesting  in  courts  the  power  to  set 
aside  otherwise  lawful  acts  of  the  legislature  for  al- 
leged corruption  in  their  passage,  would  exceed  even 
the  wrong  done  by  such  legislation,  because  of  the  un- 
certainty it  would  give  to  the  binding  effect  of  all  laws 
and  the  overwhelming  influence  such  power  to  inquire 
into  legislative  motives  would  give  the  judicial  branch  of 
the  government  in  respect  of  all  legislative  action. 

The  abuses  which  too  liberal  charters  and  insufficient 
visitorial  power  permit,  are  either  for  the  State  legis- 
latures or  for  the  State  executive  and  courts,  by  quo 
warranto,  to  correct  and  remedy.  State  laws  which 
should  forbid  the  issue  of  stock  or  the  issue  of  bonds 
by  any  corporation  until  after  an  examination  by  a 
State  board  of  supervision  into  the  affairs  of  the  com- 
pany and  a  certificate  that  the  assets  justify  it,  would 


806  RECENT  CRITICISM  OF 

do  much  in  this  direction.  The  Federal  courts  can  do 
nothing  to  prevent  such  abuses,  and  their  action  is  not 
usually  invoked  until  the  evil  is  done  and  only  a  bank- 
rupt estate  is  left  to  administer. 

The  combinations  known  as  trusts  are  now  before  the 
State  courts,  and  I  have  no  doubt  from  their  decisions 
that  legislation  which  experience  will  suggest,  both  by 
way  of  supervision  over  corporations  and  by  criminal 
laws,  will  suppress  much  of  their  evil  methods.  It  is 
settled  and  rightly  settled,  I  submit,  that  the  national 
government  can  do  nothing  in  this  direction,  except 
where  such  trusts  are  for  the  purpose  of  directly  con- 
trolling interstate  commerce. 

The  main  public  evil  of  corporate  growth,  the  corrup- 
tion of  politics,  must  be  reformed  by  the  people  and 
not  by  the  courts.  Courts  are  but  conservators ;  they 
can  not  effect  great  social  or  political  changes.  Cor- 
porations there  must  be  if  we  would  progress ;  accumu- 
lation of  wealth  there  will  be  if  private  property  con- 
tinues the  keystone  of  our  society;  the  temptation  to 
use  money  to  corrupt  legislatures  and  other  political 
agencies  will  remain  potent  as  long  as  undue  privilege 
for  corporations  can  be  thus  secured.  The  only  real 
remedy  is  in  the  purification  of  the  politics  of  the 
country  and  the  selection  of  incorruptible  public  serv- 
ants. Dark  as  the  prospect  sometimes  seems  for  such  a 
change,  we  must  not  and  need  not  despair.  Public 
opinion  is  sound,  the  great  heart  of  the  American  people 
is  honest,  and  slowly  but  surely  the  light  is  breaking 
in  on  them.  The  adoption  of  civil  service  reform  in 
Federal,  State  and  municipal  government  is  as  certain 
to  come  as  the  nation  is  to  live,  and  with  its  complete 
establishment,  the  end  of  those  indispensable  assistants 
of  successful  political  corruption,  the  machine  and  its 


THE  FEDERAL  JUDICIARY  307 

boss,  will  cease  to  be.  The  mad  rush  for  wealth,  the 
fevered  condition  of  business  and  the  opportunity  for 
making  sudden  fortunes  have  taken  the  attention  of  the 
more  intelligent  people  from  politics  and  made  them 
blind  or  callous  to  political  abuses.  With  their  greater 
ability  to  see  and  appreciate  the  dangers  of  the  republic, 
their  share  of  the  blame  for  present  conditions  is 
greater.  But  there  are  many  signs  of  a  quickened  pub- 
lic conscience  and  of  a  willingness  on  the  part  of  the 
intelligent  and  the  pure  to  interest  themselves  in  politics 
for  their  country's  good. 

The  present  successful  use  of  corrupt  methods  by 
corporations  is  directly  due  to  the  neglect  of  the  people 
to  exercise  the  eternal  watchfulness  which  is  the  price 
of  pure  government;  but  those  whose  interest  it  is  to 
secure  popular  support  and  who  are  willing  to  secure  it 
by  appeals  to  prejudice  do  not  tell  the  people  unpleas- 
ant truths  and  are  glad  to  find  a  scapegoat  for  the 
people's  sins  in  the  Federal  judiciary.  It  well  rounds  a 
rhetorical  period  to  point  to  the  Federal  judiciary  as  an 
irresponsible  and  irremovable  body,  wholly  out  of  touch 
with  the  people  and  conniving  at  corporate  abuses. 

To  an  impartial  observer  it  must  seem  remarkable 
that  judges  should  conceive  a  love  for  soulless  corpora- 
tions and  unduly  favor  them.  Living  as  most  of  these 
judges  do  on  their  salaries  and  deriving  no  profit  from 
corporate  investments,  they  would  seem  to  find  little  in 
their  lives  to  blind  them  to  the  injustice  of  any  claim  or 
defense  which  a  wealthy  corporation  may  make. 

If  it  were  conceded  that  greed  of  power  is  an  in- 
centive so  strong  that  Federal  judges  have  yielded  to  it 
and  have  extended  their  jurisdiction  over  corporations 
beyond  the  lines  marked  by  the  Constitution  and  the 
laws,  this  is  far  from  establishing  that  justice  has  not 


308  RECENT  CRITICISM  OF 

been  meted  out  to  corporate  suitors  with  impartial  hand. 
The  fact  is  that  when  we  come  to  examine  in  detail  the 
charges  against  the  Federal  courts,  the  burden  of  them 
is  that  they  have  assumed  jurisdiction  over  corporate 
litigation  without  constitutional  and  legal  right,  and  not 
that,  in  the  hearing  on  the  merits,  corporations  have 
been  unduly  favored.  The  latter  is  always  assumed  as  a 
granted  premise  when  the  former  is  deemed  to  be  es- 
tablished. 

Having  pointed  out  some  of  the  reasons  why  the 
jurisdiction  of  the  Federal  courts  in  respect  to  corpora- 
tions, be  it  exercised  never  so  impartially,  must  under 
existing  conditions  arouse  deep  prejudice  against  them, 
and  call  forth  severe  assaults  upon  their  conduct  and 
motives,  I  come  now  to  examine  more  in  detail  the 
charges  which  have  been  made  by  those  who  attempt 
specifications. 

The  first  is  that  the  Supreme  Court  in  holding,  in  the 
Dartmouth  College  case,  the  legislative  charter  of  a 
corporation  to  be  a  contract,  the  repeal  of  which  was 
the  impairment  of  its  obligation  and  was  inhibited  by 
the  Federal  constitution,  committed  a  fundamental  er- 
ror, induced  thereto  by  greed  of  jurisdiction,  and  thus 
furnished  to  corporations  the  means  of  maintaining  and 
enjoying  corruptly  purchased  privileges.  I  do  not 
propose  to  discuss  this  much-criticised  case,  because  it 
was  decided  in  1820,  and  has  now  nothing  but  an  his- 
torical interest;  for  no  charter  has  been  granted  for 
years  which  does  not  contain  a  clause  permitting  its 
repeal  or  amendment,  and  a  court  could  hardly  give  a 
wider  scope  to  such  a  reservation  clause  in  favor  of  the 
State's  power  than  that  which  the  Supreme  Court  of  the 
United  States  gave  in  the  Greenwood  Freight  Company 
case.      With   reference  to  the   accusation   that   it   was 


THE  FEDERAL  JUDICIARY  309 

greed  of  jurisdiction  which  induced  the  court  to  hold 
that  the  revocation  of  a  grant  by  a  State  was  the  im- 
pairment of  a  contract  and  so  within  the  Federal  con- 
stitution, it  should  be  said  that  the  people  of  the 
United  States,  instead  of  condemning  this  assumption 
of  jurisdiction,  have  by  subsequent  amendment  expressly 
extended  the  Federal  judicial  power  to  the  cognizance  of 
State  aggression  upon  all  vested  rights  whether  resting 
in  grant,  contract  or  otherwise. 

And  this  suggests  the  charge  against  the  Supreme 
Court  that  it  improperly  seized  additional  corporate 
jurisdiction  in  its  holding  that  the  Fourteenth  Amend- 
ment forbidding  a  State  to  deprive  any  person  of  life, 
liberty  or  property  without  due  process  of  law  protects 
the  property  of  corporations  as  well  as  that  of  natural 
persons.  It  is  difficult  to  see  how  any  other  result 
could  have  been  reached.  For,  even  if  artificial  persons 
are  not  referred  to  in  the  amendment,  natural  persons 
necessarily  have  vested  rights  in  the  property  of  cor- 
porations. It  is  said  that  the  construction  should  have 
been  limited  so  as  to  exclude  corporations  because  the 
moving  cause  was  only  to  give  national  protection  to  a 
newly  freed  race.  In  the  light  of  the  general  language 
of  the  amendment,  this  would  have  been  a  narrow  con- 
struction indeed,  and  one  which  nothing  could  have 
justified  except  the  conviction,  now  firmly  held  and  de- 
clared in  some  quarters,  that  Federal  jurisdiction  to 
preserve  any  rights,  even  those  declared  in  Magna 
Charta,  is  an  unmitigated  evil,  to  be  avoided  by  inter- 
pretation however  strained. 

And  yet  the  Supreme  Court  is  attacked  with  invective 
and  epithet  by  the  same  critics  for  refusing  to  hold 
in  the  Sugar  Trust  case  that  the  power  to  regulate  in- 
terstate commerce  includes  within  it  the  power  to  in- 


310  RECENT  CRITICISM  OF 

hibit  the  purchase  by  one  company  of  substantially  all 
the  plants  for  refining  sugar  in  this  country  with  the 
purpose  of  controlling  its  sugar  markets.  To  extend 
the  Federal  regulation  of  interstate  commerce  to  that 
of  the  purchase  of  the  means  of  producing  a  commodity 
which,  when  produced,  is  to  be  the  subject  of  commerce 
both  State  and  interstate,  requires  a  construction  of  the 
interstate  commerce  clause  so  broad  that,  if  it  had 
been  accepted,  it  would  have  been  difficult  to  fix  a  limit 
beyond  which  Congress  might  not  go  in  the  control  of 
mercantile  business  and  manufacturing  in  every  com- 
munity. It  would  have  seemed  to  give  some  ground  for 
the  charge  so  often  made,  that,  through  Federal  ju- 
dicial decisions,  rights  of  the  States  are  being  absorbed 
in  the  national  government. 

As  I  have  already  said,  the  burden  of  the  specifica- 
tions against  the  Federal  judiciary,  is  not  that  they 
unduly  favor  corporations  in  the  hearing  of  cases,  but 
that  they  have  improperly  given  corporations  oppor- 
tunities to  avoid  the  State  courts  by  resorting  to  the 
Federal  courts.  Hence  the  decisions  of  the  Supreme 
Court,  by  which  corporations  organized  in  one  State  and 
suing  or  being  sued  in  another  are  permitted  to  select 
the  Federal  courts  as  a  forum,  have  been  the  subject  of 
the  severest  animadversion,  and  the  judges  rendering 
the  decisions  are  charged  with  having  been  consciously 
guilty  of  flagrant  usurpation  and  with  intentional  vio- 
lation of  the  law  and  the  Constitution.  When  corpora- 
tions first  appeared  in  the  Federal  courts,  it  was  held 
that  a  corporation  was  not  a  citizen  within  the  meaning 
of  the  judiciary  act  or  the  Constitution,  and  that  Fed- 
eral jurisdiction  asserted  on  the  ground  of  diverse  citi- 
zenship in  a  cause  to  which  a  corporation  was  a  party, 
must  depend  on  the  citizenship  of  the  stockholders  or 


THE  FEDERAL  JUDICIARY  311 

members  of  the  corporation.  As  it  had  also  been  ruled 
that  the  words  of  the  judiciary  act  giving  circuit  courts 
jurisdiction  in  every  suit  between  a  citizen  of  the  State 
where  it  was  brought,  and  the  citizen  of  another  State, 
only  included  suits  where  all  the  parties  on  one  side 
were  of  different  citizenship  from  that  of  all  of  those 
on  the  other,  the  result  was  that  no  corporation  could 
resort  to  a  Federal  court  unless  all  its  stockholders  were 
citizens  of  another  State  from  that  in  which  the  suit 
was  brought,  and  the  ownership  of  one  share  by  a 
resident  of  the  same  State  with  that  of  the  opposing 
partly  ousted  the  jurisdiction.  And  this  the  Supreme 
Court  held  until  1844.  In  that  year  the  question  arose 
again,  and  the  court  held  that,  for  purposes  of 
Federal  jurisdiction,  a  corporation  was  a  citizen 
of  the  State  which  created  it,  and  soon  thereafter 
laid  down  the  doctrine,  always  followed  since,  that  the 
members  of  a  corporation  are  to  be  conclusively  pre- 
sumed to  be  citizens  of  the  State  of  its  creation.  This 
conclusive  presumption  was  a  fiction,  adopted,  as  Mr. 
Justice  Bradley  has  explained,  to  avoid  the  difficulty 
and  injustice  caused  by  the  frequent  appearance  in 
such  cases  of  a  single  resident  stockholder.  It  was  in 
effect  a  changed  construction  of  the  judiciary  act  for 
reasons  which  had  not  forcibly  presented  themselves  to 
the  court  when  the  question  first  arose.  It  was  certainly 
true  that  when  corporations,  organized  in  other  states 
than  that  where  suit  was  brought,  appeared  in  litiga- 
tion, they  represented  members,  a  great  majority  of 
whom  were  either  citizens  of  other  States  or  aliens.  If 
any  local  prejudice  was  likely  to  have  effect  against  a 
non-resident  natural  person,  it  certainly  would  have  ef- 
fect against  a  corporation  from  another  State,  and 
the  ownership  of  a  few  shares  of  its  stock  by  a  resi- 


312  RECENT  CRITICISM  OF 

dent  would  not  obviate  it.  The  result  reached  by  the  de- 
cisions was  quite  within  the  constitutional  grant  of 
Federal  judicial  power,  for  that  covers  all  controversies 
between  citizens  of  different  States,  and  it  is  immaterial 
whether  in  such  controversies  are  also  involved,  on  both 
sides,  citizens  of  the  same  State.  There  was  such  a  real 
difference  for  the  practical  purposes  of  a  trial  and  the 
bearing  of  local  prejudice  upon  it  between  a  suit  by  or 
against  a  foreign  corporate  body  with  one  or  more  resi- 
dent stockholders,  whose  identity  was  lost  in  that  of  the 
corporate  party  litigant,  and  a  suit  by  or  against 
parties  to  the  record  who  were  natural  persons,  some  of 
them  residents  and  others  non-residents,  that  the  ex- 
ception made  in  respect  to  corporations  in  the  estab- 
lished construction  of  the  judiciary  act  would  seem 
sound  and  reasonable. 

The  holding  that  a  foreign  or  non-resident  corpora- 
tion must  be  excluded  from  resort  to  a  Federal  forum  be- 
cause it  had  one  or  more  resident  stockholders  would 
practically  deprive  the  owners  of  nearly  all  foreign 
capital  to  be  invested  in  the  newer  States  of  the  Union 
of  any  opportunity  to  sue  or  defend  in  the  Federal 
courts,  because,  in  the  nature  of  things,  their  capital 
must  assume  a  corporate  form,  and  in  companies  with 
thousands  of  shares  of  capital  stock  transferable  with- 
out restriction,  a  share  or  two,  at  least,  would  be  sure 
to  find  its  way  into  the  possession  of  a  resident  owner. 
And  yet  the  reason  for  the  constitutional  provision  ap- 
plied more  strongly  to  such  corporate  investments  than 
to  those  of  non-resident  natural  persons. 

The  ruling  was  directly  in  the  interest  of  the  new 
States  who  were  thirsting  for  foreign  capital,  because 
it  removed  one  of  the  hindrances  to  its  coming.  It  was, 
therefore,  exactly  in  accord  with  the  intention  of  the 


THE  FEDERAL  JUDICIARY  313 

Constitution.  It  gives  but  a  contracted  view  of  the 
purpose  of  the  framers  of  that  instrument  in  provid- 
ing a  tribunal  between  citizens  of  different  States,  which 
was  equally  related  to  both,  to  regard  it  solely  from 
the  standpoint  of  the  non-resident  and  as  intended  only 
to  secure  a  benefit  for  him.  It  is  crediting  them  with 
a  much,  more  statesmanlike  object  to  say,  that  while  the 
provision  was,  of  course,  intended  to  avoid  actual  in- 
justice from  local  prejudice,  its  more  especial  purpose 
was  to  allay  the  fears  of  such  injustice  in  the  minds  of 
those  whose  material  aid  was  necessary  in  developing 
the  commercial  intercourse  between  the  States,  and  thus 
to  induce  such  intercourse  and  the  investment  of  capital 
owned  by  citizens  of  one  State  in  another.  In  this 
light,  it  is  only  one  of  several  provisions  of  the  Con- 
stitution intended  to  prevent  unnecessary  and  preju- 
diced restraints  upon  interstate  commerce,  and  it  con- 
fers more  benefit  upon  those  against  whose  prejudice 
it  is  intended  as  a  shield  than  upon  those  whose  interests 
are  directly  protected. 

The  decisions  under  discussion  were  made  by  the  Su- 
preme Court  in  the  days  of  Chief  Justice  Taney,  and 
with  his  concurrence,  at  a  time  when  its  members  are 
now  thought  to  have  been  inclined  toward  a  narrower 
construction  of  the  Constitution  and  Federal  jurisdic- 
tion and  powers  than  their  predecessors. 

Moreover,  the  people  of  the  United  States  for  fifty 
years  have  acquiesced  in  this  holding.  In  the  last  half 
century,  it  has  always  been  within  the  power  of  Con- 
gress by  two  lines  of  legislation  to  reverse  it,  and,  al- 
though during  that  period  the  party  of  strict  con- 
struction and  State's  rights  was  for  years  in  control  of 
Congress  and  the  judiciary  act  was  four  times  sub- 
stantially amended,  the  decisions  remain  the  law  of  the 


314  RECENT  CRITICISM  OF 

land.  When  it  requires  a  constitutional  amendment  to 
correct  or  restrain  an  unwarranted  assumption  of  power 
by  a  court,  the  machinery  for  securing  it  is  so  cumber- 
some that  the  failure  by  this  means  to  restrain  the 
court  is  not  a  conclusive  argument  in  favor  of  the 
people's  acquiescence  in  the  court's  assertion  of  juris- 
diction. But  where,  as  in  the  present  case,  the  issue 
was  merely  one  of  construing  a  statute,  the  failure  of 
Congress  for  half  a  century  to  amend  or  overrule  the 
construction  given  is  as  strong  an  argument  as  can  be 
adduced  to  justify  the  action  of  the  court,  and  would 
in  this  case  seem  to  be  the  best  possible  refutation  of 
the  severe  charge  that  the  judges,  who  made  these  de- 
cisions, were  guilty  of  flagrant  and  intentional  usurpa- 
tion. 

If  it  is  true  that  citizens  of  one  State  organize 
corporations  under  the  laws  of  another  State  to  do  busi- 
ness in  the  former  State,  and  thereby  carry  controver- 
sies with  their  fellow-citizens  into  the  Federal  courts, 
this  is  an  abuse  which  should  be  remedied  by  Congress, 
as  other  frauds  upon  the  jurisdiction  have  been  pro- 
vided against. 

The  Federal  courts  have  also  been  severely  arraigned 
for  undue  amplification  of  their  powers  in  the  matter  of 
receivers  of  railroad  companies,  due  as  it  is  charged  to 
their  leaning  toward  such  corporations  and  a  desire  to 
protect  them.  This  count  of  the  general  indictment 
against  the  Federal  judiciary  is  more  fully  and  elabo- 
rately treated  in  a  memorial  presented  to  Congress  by 
the  Legislature  of  South  Carolina,  than  anywhere  else. 
The  occasion  for  the  protest  was  the  commitments  for 
contempt  by  the  Circuit  Court  of  the  United  States 
sitting  in  South  Carolina  of  certain  State  officers.  In 
one   case,    the   contemnors    were    taxing    officers,   who, 


THE  FEDERAL  JUDICIARY  315 

though  they  knew  the  property  to  be  in  the  hands  of  the 
receiver  of  the  Federal  court,  without  any  applica- 
tion to  the  court,  seized  it  for  taxes.  In  the  other  case, 
a  constable  without  search  warrant  broke  into  the  ware- 
house of  a  railroad  in  the  hands  of  the  court's  receiver 
and  seized  a  cask  of  liquor  on  the  ground  that  it  had 
been  transported  into  the  State  contrary  to  the  pro- 
visions of  the  State  dispensary  law.  The  cask  had  been 
imported  before  the  dispensary  law  went  into  effect  and 
had  been  held  by  the  receiver  because  the  whereabouts 
of  the  consignee  could  not  be  discovered.  The  circum- 
stances in  each  of  these  cases  rather  indicate  a  desire 
on  the  part  of  the  State  authorities  to  seek  a  conflict 
with  the  Federal  court  than  an  aggressive  and  domi- 
neering spirit  in  the  latter.  When  the  State  authorities 
in  a  decent  and  orderly  way  subsequently  applied  to  the 
court  for  an  order  upon  the  receiver  to  pay  the  taxes, 
the  objections  of  the  receiver  were  heard  and  overruled 
and  an  order  made  upon  him  to  pay. 

The  deep  spirit  of  distrust  of  the  Federal  courts  in 
which  the  memorial  is  written  may  be  inferred  from  one 
of  its  concluding  sentences,  in  which  the  Federal  courts 
of  equity  are  referred  to  as  "  having  been  degraded  to 
their  present  position  of  being  feared  by  the  patriotic 
and  avoided  by  the  honest."  We  are  permitted  to  con- 
jecture that  the  memorialists  were  not  wholly  unbiased 
in  discussing  the  decisions  of  the  Federal  courts  and 
their  integrity  and  standing,  when  we  read  the  state- 
ment in  the  inaugural  address  of  the  present  Governor 
of  the  State,  who  was  one  of  the  signers  of  the  memorial, 
that  he  and  the  men  to  whom  he  was  speaking  in  this 
year  of  grace,  1895,  were  "  South  Carolinians  by  birth 
and  choice,  Southerners  on  principle  and  Americans  by 
force  of  circumstances." 


816  RECENT  CRITICISM  OF 

The  main  purpose  of  the  memorial  was  to  show  that 
the  practice  of  Federal  courts  of  equity  in  appointing 
receivers  to  operate  railroads  is  a  usurpation  of  au- 
thority wholly  without  warrant  in  the  English  High 
Court  of  Chancery,  by  the  procedure  in  which  the  scope 
of  equitable  remedies  in  the  Federal  courts  is  usually 
governed.  To  establish  this,  the  memorialists  relied 
chiefly  on  the  judgment  of  Lord  Cairns  in  the  Court  of 
Chancery  Appeals  in  the  case  of  Gardner  vs.  The  Lon- 
don, Chatham  &  Dover  Company,  in  which  the  order  of 
the  Vice-Chancellor  appointing  a  manager  of  the  de- 
fendant railway  on  the  application  of  a  mortgagee  of 
the  railway  tolls  was  reversed.  The  judgment  was  placed 
upon  two  grounds,  first,  that  the  mortgage  gave  no 
right  of  sale  and  liquidation,  so  that  the  order  was 
really  for  a  permanent  management  of  a  going  business, 
while  the  practice  in  courts  of  equity  justified  the  ap- 
pointment of  receivers  only  until  a  sale  and  liquidation ; 
and,  second,  that  by  the  charter  of  the  company  the 
franchises  were  personal  and  non-assignable,  and  could 
not  be  exercised  by  a  receiver.  The  first  reason  has 
little  or  no  application  to  the  vast  majority  of  cases 
in  which  railroad  receivers  have  been  appointed  in  this 
country,  for  generally  the  remedy  sought  has  been  a  sale 
and  liquidation,  and  the  receiver  has  thus  been  appointed 
to  serve  only  until  the  sale.  The  second  ground  of 
the  judgment  does  not  relate  to  the  competency  of  a 
court  of  equity  to  manage  a  railroad  or  other  going 
business  through  an  agent,  pendente  lite,  but  only  to 
the  assignability  of  franchises,  and  it  furnishes  as  little 
support  as  the  first  ground  to  the  claims  of  the 
memorial.  The  power  to  mortgage  conferred  by  statute 
on  railway  companies  in  this  country  usually  contains 
express  authority  to  mortgage  both  the  railroad  and  the 


THE  FEDERAL  JUDICIARY  317 

franchises  to  operate  it.  The  necessary  implications 
from  this  are  the  right  to  sell  the  franchises  with  the 
road  at  a  foreclosure  sale,  and  the  power  of  the  court  in 
which  foreclosure  proceedings  are  had,  to  preserve  the 
property  with  its  assignable  franchises,  by  temporary 
custody  and  operation  of  the  road  under  such  fran- 
chises pending  the  sale. 

By  reference  to  Lord  Justice  Baggallay's  judgment, 
In  re  The  Manchester  &  Milford  Ry.  Co.,  14  Ch.  D., 
657,  it  appears  that  the  result  in  Gardner's  case  was  a 
surprise  to  the  profession,  and  reversed  the  practice  of 
appointing  managers  in  such  cases  which  had  been  in 
vogue  in  the  chancery  courts  of  England  for  ten  years 
previous,  and  which  had  had  the  sanction  of  as  great 
a  chancery  lawyer  as  Lord  Hatherly.  Moreover,  no 
sooner  was  the  decision  announced  in  the  Gardner  case 
than  Parliament  passed  an  act  expressly  authorizing 
the  appointment  of  railroad  managers  by  the  court  of 
chancery,  showing  that,  in  the  opinion  of  Parliament, 
jurisdiction  to  manage  railroads,  pending  litigation 
over  them,  by  officers  of  the  court  was  a  power  that 
courts  of  equity  should  have,  if  they  did  not  already 
have  it. 

The  charge  of  usurpation  in  the  appointment  of  re- 
ceivers becomes  still  less  maintainable  when  we  consider 
the  history  of  receiverships  in  this  country.  Gardner's 
case  was  decided  in  1866.  As  much  as  ten  years  before 
this,  the  Supreme  Court  of  the  United  States  in  Coving- 
ton Drawbridge  Co.  vs.  Shepherd,  21  How.,  112,  had 
rf  "erred  to  the  practice  in  the  English  court  of  chancery 
\'j  order  a  receiver  to  be  appointed  to  manage  railways 
and  other  corporate  property,  to  take  the  proceeds  of 
the  franchises  and  to  apply  them  to  pay  the  creditors 
filing  die  bill,  and  had  approved  and  adopted  it  in  the 


318  RECENT  CRITICISM  OF 

case  of  a  bridge  company.  Thereafter  receivers  were 
appointed  for  railways  and  it  had  become  a  settled  prac- 
tice not  only  in  the  Federal  courts  but  in  State  courts 
when  Gardner's  case  was  decided.  Even  if  that  case 
can  not  be  reconciled  with  the  practice  of  appointing  re- 
ceivers under  the  conditions  existing  in  this  country,  as 
I  have  attempted  to  show  it  can  be,  there  would  still 
seem  to  be  no  binding  or  jurisdictional  obligation  on 
courts  of  the  United  States  to  reverse  their  settled  pro- 
cedure of  ten  years'  standing  based  on  English  prec- 
edent, to  accord  with  a  new  and  unexpected  ruling  in 
the  English  courts,  and  one  the  effect  of  which  was 
immediately  done  away  with  by  an  act  of  Parliament 
restoring  the  old  practice. 

The  appointment  of  receivers  to  operate  railroads 
pending  suits  in  foreclosure  and  creditors'  bills,  instead 
of  being  an  abuse  of  authority  by  the  Federal  courts, 
was  a  most  commendable  use  of  an  ordinary  equitable 
means  of  preserving  the  status  quo  with  respect  to  a 
new  kind  of  property  and  in  a  pressing  emergency. 
Generally  no  one  but  the  parties  are  interested  in  pre- 
serving the  subject  matter  of  the  suit  as  a  going  concern 
till  it  can  be  sold,  but  in  the  case  of  a  railroad  the  public 
are  even  more  interested  than  the  parties  in  having  this 
done.  It  is  mentioned  in  the  South  Carolina  memorial 
as  a  measure  of  the  abuse  of  Federal  jurisdiction  in  this 
regard  that  one-fifth  of  the  railroad  mileage  in  the 
United  States  is  in  the  hands  of  Federal  court  receivers 
Considering  the  severity  of  the  times  and  the  suicicjjl 
cutting  of  rates  by  railroad  companies  for  the  purj^ise 
of  securing  business,  I  do  not  know  that  this  proportion 
unfairly  indicates  the  number  of  embarrassed  and  bank- 
rupt roads  in  this  country,  but  it  is  hard  to  see  why 
it  is  an  argument  against  the  appointment  of  receivers 


THE  FEDERAL  JUDICIARY  319 

to  operate  them.  The  disastrous  consequences  to  the 
whole  country,  were  these  great  arteries  of  the  nation 
to  cease  to  flow,  can  hardly  be  overstated ;  and  yet,  un- 
less in  the  course  of  liquidation,  sale  and  reorganiza- 
tion, they  could,  when  insolvent,  be  withdrawn  from 
liability  to  seizure  and  dismemberment  by  ordinary  exe- 
cutions in  the  various  jurisdictions  which  they  traverse, 
their  operation  would  become  impossible.  The  ordinary 
insolvent  laws  of  each  State,  even  if  their  procedure 
had  been  at  all  adapted  to  the  running  of  railroads,  as 
it  was  not,  would  have  supplied  in  such  case  but  a  poor 
substitute  for  the  present  receivership.  Most  railroads 
are  to-day  interstate,  and  the  advantage  of  an  ad  in- 
terim management  under  practically  the  same  jurisdic- 
tion on  both  sides  of  State  lines  is  apparent.  In  the 
absence  of  statutory  provision  for  such  an  exigency, 
the  flexible  procedure  of  a  court  of  equity  is  fitted  to 
meet  it,  and  although  the  remedy  was  adopted  soon  after 
the  building  of  railroads  more  than  forty  years  ago  and 
has  been  applied  with  increasing  frequency  ever  since, 
it  has  not  been  deemed  necessary  by  Congress  or  State 
legislatures  to  provide  any  other  means  for  bridging 
the  undoubted  difficulties  presented  by  the  insolvency 
of  railroad  companies. 

One  of  the  greatest  objections  urged  to  receiverships 
in  the  South  Carolina  memorial  is  that  it  removes  the 
railroad  property  from  local  jurisdictions.  But  this 
objection  would  be  incident  to  any  imaginable  tempo- 
rary management  of  the  railroad  pending  proceedings 
to.  sell  and  distribute  the  proceeds.  The  injury  to  the 
sovereignty  of  the  State  involved  in  the  requirement 
that  its  taxing  officers  shall  make  application  to  the 
Federal  court  having  custody  of  property  for  an  order 
for  the  payment  of  the  taxes  due  upon  it,  instead  of 


320  RECENT  CRITICISM  OF 

violently  taking  it  out  of  the  court's  possession,  is  one 
that  must  be  charged  to  the  Constitution  of  the  United 
States,  to  the  supremacy  of  the  Federal  jurisdiction 
where  it  conflicts  with  that  of  the  State,  herein  declared, 
and  to  the  circumstances  by  the  force  of  which  South 
Carolina  is  still  in  this  country.  The  charge  that  in 
appointing  receivers  the  Federal  courts  abolish  the  right 
of  trial  by  jury  in  great  stretches  of  country  is  untrue, 
for  by  the  statute  of  1887  suit  may  be  brought  against 
a  receiver  without  leave  of  court,  and  this  permits  a  suit 
at  law  with  all  its  incidents.  The  fear  entertained  that 
the  management  by  the  Federal  courts  of  property 
worth  $13,000,000,000,  without  responsibility,  would 
lead  to  malversation  of  funds  and  corruption  does  not 
seem  to  be  justified  by  the  history  of  Federal  receiver- 
ships. The  fact  is,  that  no  possible  system  of  manag- 
ing railroads  could  be  better  adapted  to  a  summary  in- 
vestigation of  the  details  of  the  management  than  that 
by  a  court  of  equity  in  which  the  court  will  always 
and  at  once  entertain  complaints  by  anyone  in  interest 
against  its  receiver  and  examine  the  facts  upon  which 
they  rest.  This  may  account,  in  part,  for  the  very 
few  instances  of  official  corruption  among  Federal 
receivers. 

On  the  other  hand,  if  any  other  and  better  way  can 
be  devised  for  the  temporary  management  of  insolvent 
railroads  pending  their  sale,  it  may  be  conceded  that 
there  are  substantial  reasons  for  relieving  Federal  courts 
of  equity  from  the  duty.  The  business  has  grown  to 
such  an  extent  that  regular  judicial  labors  are  much  in- 
terfered with  by  the  consideration  of  mere  questions  of 
railroad  management.  Unpleasant  public  controversies 
often  follow  in  the  wake  of  receiverships,  having  a  tend- 
ency to  put  the  court  in  the  attitude  of  a  party.     The 


THE  FEDERAL  JUDICIARY  321 

more  or  less  complete  dependence  of  the  court  upon  the 
receivers  in  matters  of  policy  and  the  possibility  that 
this  confidence  may  be  misplaced  make  the  jurisdiction 
an  irksome  one.  The  immunity  enjoyed  by  a  receiver 
and  a  railroad  in  his  charge  from  ordinary  process  in 
rem  is  very  attractive  to  struggling  railroad  owners 
and  friendly  litigation  is  often  begun  merely  to  secure 
a  receiver  and  tide  over  a  stringency  in  the  interest 
of  all  concerned.  With  no  one  in  interest  to  oppose 
the  appointment  or  to  move  its  discharge  after  it  is 
made,  a  receiver  is  secured  and  he  is  continued  as  long 
as  all  parties  do  not  object  and  do  not  press  the  cause 
to  final  disposition.  Courts  usually  have  so  much  to  at- 
tend to  that  they  do  not  and  can  not  investigate  the 
weight  or  validity  of  reasons  for  delay  in  causes  when 
not  brought  to  their  attention  by  complaint  of  some  of 
the  parties.  Meantime  the  receivership  is  maintained 
and  the  irritation  incident  to  the  withdrawal  of  the  rail- 
road from  local  jurisdictions  is  continued.  The  work 
of  managing  the  road  is  saddled  upon  the  court  pending 
the  coming  of  a  time  when  a  reorganization  may  be 
agreed  upon  or  a  better  price  obtained.  I  sympathize 
heartily  with  every  effort  to  impose  a  practical  limita- 
tion upon  the  duration  of  receiverships.  The  use  of  the 
courts  as  a  harbor  of  refuge  from  creditors  during  a 
financial  storm  may  be  abused,  and  doubtless  has  been. 
The  temptation  to  this  resort  is  greatly  increased,  if, 
as  is  too  often  the  practice,  the  controlling  officer  of  the 
company  is  continued  in  the  management  as  receiver. 
The  patronage  incident  to  the  jurisdiction  is  one  of  its 
evils.  Recognizing  this  and  wishing  to  avoid  a  dis- 
agreeable race  for  office,  courts  usually  acquiesce  in  the 
appointment  of  a  person  recommended  by  the  parties, 
who  is  not  infrequently  the  president  or  manager  of 


RECENT  CRITICISM  OF 

the  company,  and  whose  failure  to  oppose  the  receiver- 
ship, it  may  be,  has  been  secured  by  such  a  recommenda- 
tion. Consent  applications  for  receiverships  would  be 
much  less  common  if  it  were  provided  by  statute  that, 
wherever  a  case  is  made  on  preliminary  application  for 
the  immediate  appointment  of  a  receiver,  the  clerk  or 
marshal  should  act  as  temporary  receiver  for  thirty 
days,  with  a  fixed  per  diem  compensation,  at  which  time 
a  permanent  receiver,  not  an  officer  of  the  court,  should 
be  selected  by  the  court  after  full  notice  to  all  parties, 
and  that  no  one  connected  with  the  previous  manage- 
ment of  the  railroad  or  interested  in  its  bonds  or  stock 
should  be  eligible,  even  with  consent  of  the  parties.  It 
has  sometimes  seemed  to  me  that  by  virtue  of  the  power 
to  pass  a*  bankrupt  law,  and  to  regulate  interstate  com- 
merce, a  national  bureau  for  the  sale  of  the  assets  of 
insolvent  interstate  railroads  and  their  ad  interim  opera- 
tion might  be  established,  something  like  that  now  pro- 
vided for  national  banks,  and  that  the  executive  head 
of  such  a  bureau  might  be  better  able  to  speed  the  sale 
of  the  railroads  and  shorten  the  duration  of  their  official 
management  than  courts.  When,  however,  one  attempts 
to  formulate  a  system  which  shall  have  the  flexibility  of 
the  present  procedure  and  its  adaptability  for  preserv- 
ing the  real  status  quo  during  the  adjustment,  one  is 
obliged  to  admit  that  the  court  management  pendente 
lite  has  advantages  over  any  other,  anomalous  in  some 
respects  as  it  may  seem.  Probably  this  explains  the 
failure  of  Congress  or  the  State  legislatures  to  provide 
any  other  system,  and  even  the  zealous  South  Carolina 
memorialists  in  their  recommendation  to  Congress  were 
unable  to  point  out  a  better  way  than  court  receiverships 
with  a  few  minor  limitations.  In  any  event,  until  some 
new   way   is   devised   for   the   temporary   operation   of 


THE  FEDERAL  JUDICIARY 

railroads,  pending  insolvency  or  foreclosure  and  sale, 
courts  must  assume  it,  and  it  ill  becomes  anyone  to  criti- 
cise their  action  in  doing  so,  and  to  charge  it  to  their 
greed  of  power,  when  any  other  course  would  result  in 
disastrous  consequences  to  the  parties  in  interest  and 
the  country  at  large. 

On  the  whole,  when  the  charges  made  against  Federal 
courts  of  favoritism  toward  corporations,  are  stripped 
of  their  rhetoric  and  epithet,  and  the  specific  instances 
upon  which  the  charges  are  founded  are  reviewed,  it  ap- 
pears that  the  action  of  the  courts  complained  of  was 
not  only  reasonable  but  rested  on  precedents  established 
decades  ago  and  fully  acquiesced  in  since,  and  that  the 
real  ground  of  the  complaint  is  that  the  constitutional 
and  statutory  jurisdiction  of  the  Federal  courts  is  of 
such  a  character  that  it  is  frequently  invoked  by  cor- 
porations to  avoid  some  of  the  manifest  injustice  which 
a  justifiable  hostility  to  the  corrupt  methods  of  many 
of  them  inclines  legislatures  and  juries  and  others  to 
inflict  upon  all  of  them. 

We  come  finally  to  the  relation  of  the  Federal  courts 
to  organized  labor.  The  capitalist  and  laborer  share  the 
profit  of  production.  The  more  capital  in  active  employ- 
ment the  more  work  there  is  to  do,  and  the  more  work 
there  is  to  do,  the  more  laborers  are  needed.  The  greater 
the  need  of  laborers,  the  better  their  pay  per  man. 
It  is  clearly  in  the  interest  of  those  who  work  that  capital 
shall  increase  more  rapidly  than  they  do.  Everything, 
therefore,  having  a  legitimate  tendency  to  increase  the 
accumulation  of  wealth  and  its  use  for  production,  will 
give  each  workingman  a  larger  share  of  the  joint  result 
of  capital  and  labor,  and  it  is  in  a  large  measure  be- 
cause this  country  has  grown  more  rapidly  in  capital 
than  in  population,  that  wages  have  steadily  increased. 


SM  RECENT  CRITICISM  OF 

But  while  it  is  in  the  common  interest  of  labor  and 
capital  to  increase  the  fruits  of  production,  yet  in 
determining  the  share  of  each  their  interests  are  plainly 
opposed.  Though  the  law  of  supply  and  demand  will 
doubtless,  in  the  end,  be  the  most  potent  influence  in  fix- 
ing this  division,  yet  during  the  gradual  adjustment  to 
the  changing  markets  and  the  varying  financial  con- 
ditions, capital  will  surely  have  the  advantage,  unless 
labor  takes  united  action.  During  the  betterment  of 
business  conditions,  organized  labor,  if  acting  with  rea- 
sonable discretion,  can  secure  much  greater  promptness 
in  the  advance  of  wages,  than  if  it  were  left  to  the 
slower  operation  of  natural  laws,  and,  in  the  same  way, 
as  hard  times  come  on,  the  too  eager  employer  may  be 
restrained  from  undue  haste  in  reducing  wages.  The 
organization  of  capital  into  corporations,  with  the  posi- 
tion of  advantage  which  this  gave  in  a  dispute  with 
single  laborers  over  wages,  made  it  absolutely  necessary 
for  labor  to  unite  to  maintain  itself.  For  instance, 
how  could  workingmen,  dependent  on  each  day's  wages 
for  living,  dare  to  take  a  stand  which  might  leave  them 
without  employment  if  they  had  not  by  small  assess- 
ments accumulated  a  common  fund  for  their  support 
during  such  emergency?  In  union  they  must  sacrifice 
some  independence  of  action,  and  there  are  bad  results 
from  the  tyranny  of  the  majority  in  such  cases,  but  the 
hardships  which  have  followed  impulsive  resort  to  ex- 
treme measures  have  had  a  good  effect  to  lessen  these. 
Experience,  too,  will  lead  to  classification  among  the 
members  so  that  the  cause  of  the  skilled  and  worthy 
shall  not  be  leveled  down  to  that  of  the  lazy  and 
neglectful.  Like  corporations,  labor  organizations  do 
great  good  and  much  evil.  The  more  conservatively 
and  intelligently  conducted  they  are,  the  more  benefit 


THE  FEDERAL  JUDICIARY  325 

they  confer  on  their  members.  The  more  completely 
they  yield  to  the  dominion  of  those  among  them  who 
are  intemperate  of  expression  and  violent  and  lawless 
in  their  methods,  the  more  evil  they  do  to  themselves  and 
society.  Unfortunately,  there  are  large  organizations 
of  the  latter  class,  and,  in  the  heat  of  a  bitter  con- 
test with  employers,  rights  of  person  and  property  are 
sometimes  openly  violated  in  avowed  support  of  the 
cause  of  labor.  The  infractions  of  the  law,  actual  and 
threatened,  are  palpable,  and  the  interference  of  the 
courts  by  their  usual  processes  to  prevent  irreparable 
injury  to  business  and  property  becomes  necessary. 
Such  judicial  action  often  results  in  discouraging  the 
whole  movement  and  brings  down  upon  the  courts  the 
fierce  denunciations  of  the  defeated  leaders  and  arouses 
the  hostility  of  many  who  would  not  join  in  the  open 
breaches  of  the  law,  and  yet  so  sympathize  with  the 
cause  as  to  blind  them  to  the  necessity  of  the  sup- 
pression of  such  lawlessness. 

The  employees  of  railroad  companies  and  others  en- 
gaged in  transportation  of  freight  and  passengers  gen- 
erally have  well-organized  unions,  and  the  controversies 
arising  over  wages  have  been  many.  A  vast  majority 
of  these  have  been  settled  without  a  resort  to  extreme 
measures,  through  the  conservative  influence  of  level- 
headed labor  leaders  and  railroad  managers,  but  in  the 
last  twenty  years  there  have  been  some  very  extended 
railroad  strikes,  accompanied  by  the  boycotts  and  open 
violence  with  which  society  has  now  become  familiar. 
The  fact  that  many  railroads  have  been  operated  by 
Federal  receivers,  the  non-residence  of  railway  corpora- 
tions in  the  States  where  the  strikes  occur,  and  the  in- 
terstate commerce  feature  of  the  business,  have  brought 
some  of  these  violations  of  property  and  private  and 


326  RECENT  CRITICISM  OF 

public  right  within  the  cognizance  of  Federal  courts. 
Because  the  participants  in  such  contests  have  been 
spread  more  widely  over  the  country  than  in  similar  con- 
tests with  which  State  courts  have  had  to  deal,  the  ac- 
tion of  the  Federal  courts  in  these  cases  has  attracted 
more  public  attention  and  evoked  more  bitter  condemna- 
tion by  those  who  naturally  sympathize  with  labor  in 
every  controversy  with  capital. 

The  efficacy  of  the  processes  of  a  court  of  equity  to 
prevent  much  of  the  threatened  injury  from  the  public 
and  private  nuisances  which  it  is  often  the  purpose  of 
the  leaders  of  such  strikes  to  cause,  has  led  to  the 
charge,  which  is  perfectly  true,  that  judicial  action  has 
been  much  more  efficient  to  restrain  labor  excesses  than 
corporate  evils  and  greed.  If  it  were  possible  by  the 
quick  blow  of  an  injunction  to  strike  down  the  con- 
spiracy against  public  and  private  rights  involved  in 
the  corruption  of  a  legislature  or  a  council,  Federal  and 
other  courts  would  not  be  less  prompt  to  use  the  remedy 
than  they  are  to  restrain  unlawful  injuries  by  labor 
unions.  But  I  have  had  occasion  to  point  out  that  the 
nature  of  corporate  wrong  is  almost  wholly  beyond  the 
reach  of  courts,  especially  those  of  the  United  States. 
The  corporate  miners  and  sappers  of  public  virtue  do 
not  work  in  the  open,  but  under  cover;  their  purposes 
are  generally  accomplished  before  they  are  known  to 
exist,  and  the  traces  of  their  evil  paths  are  destroyed 
and  placed  beyond  the  possibility  of  legal  proof.  On 
the  other  hand,  the  chief  wrongs  committed  by  labor 
unions  are  the  open,  defiant  trespass  upon  property 
rights  and  violations  of  public  order,  which  the  processes 
of  courts  are  well  adapted  both  to  punish  and  prevent. 

The  operation  of  the  interstate  commerce  law  is  an 
illustration  of  the  greater  difficulty  courts  have  in  sup- 


X 


THE  FEDERAL  JUDICIARY  327 

pressing  corporate  violations  of  law  than  those  of  trade 
unions.  The  discrimination  between  shippers  by  re- 
bates and  otherwise,  which  it  is  the  main  purpose  of 
the  law  to  prevent,  is  almost  as  difficult  of  detection 
and  proof  as  bribery,  for  the  reason  that  both  partici- 
pants are  anxious  to  avoid  its  disclosure;  but  when  the 
labor  unions,  as  they  sometimes  do,  seek  to  interfere 
with  interstate  commerce  and  to  obstruct  its  flow,  they 
are  prone  to  carry  out  their  purposes  with  such  a  blare 
of  trumpets  and  such  open  defiance  of  law  that  the  proof 
of  their  guilt  is  out  of  their  own  mouths.  The  rhetorical 
indictment  against  the  Federal  courts,  that  from  that 
which  was  intended  as  a  shield  against  corporate  wrong, 
they  have  forged  a  weapon  to  attack  the  wage-earner, 
is  in  this  way  given  a  specious  force  which  a  candid 
observer  will  be  blind  to  ignore.  Thus  are  united  in  a 
common  enmity  against  the  Federal  courts  the  populist 
and  the  trade  unionist  with  all  those  whose  political  ac- 
tion is  likely  to  be  affected  by  such  a  combination.  And 
yet  their  enmity  has  no  other  justification  than  the  dif- 
fering and  unavoidable  limitations  upon  the  efficacy  of 
judicial  action  in  respect  to  corporate  and  labor  evils. 

As  a  matter  of  fact  there  is  nothing  in  any  Federal 
decision  directed  against  the  organization  of  labor  to 
maintain  wages  and  to  secure  terms  of  employment 
otherwise  favorable.  The  courts,  so  far  as  they  have  ex- 
pressed themselves  on  the  subject,  recognize  the  right  of 
men  for  a  lawful  purpose  to  combine  to  leave  their  em- 
ployment at  the  same  time,  and  to  use  the  inconvenience 
this  may  cause  to  their  employer  as  a  legitimate  weapon 
in  the  frequently  recurring  controversy  as  to  the 
amount  of  wages.  It  is  only  when  the  combination  is 
for  an  unlawful  purpose  and  an  unlawful  injury  is 
thereby  sought  to  be  inflicted,  that  the  combination  has 


328  RECENT  CRITICISM  OF 

received  the  condemnation  of  the  Federal  as  well  as  of 
State  courts. 

The  action  of  the  Federal  courts  all  over  the  country 
in  the  recent  American  Railway  Union  strike  in  issuing 
injunctions  to  prevent  further  unlawful  interference  by 
the  strikers  with  the  carrying  of  the  mails,  and  the 
flow  of  interstate  commerce,  followed  by  the  commitment 
for  contempt  of  the  strike  leaders  who  defied  the  in- 
junction served  on  them,  is  what  has  called  out  the 
official  protests  of  the  Governors  of  Illinois  and  Colo- 
rado, and  the  phrase  "  government  by  injunction  "  has 
been  invented  to  describe  the  alleged  usurpation  of 
power  by  the  Federal  tribunals  in  this  crisis. 

When  the  history  of  the  great  strike  shall  be  written 
in  years  to  come,  the  absurd  expectations  and  purpose 
of  its  projectors  and  their  marvelous  success  in  delud- 
ing a  myriad  of  followers  into  their  active  support  will 
seem  even  more  difficult  of  explanation  than  they  do 
to-day.  The  mind  that  could  conceive  and  so  far  exe- 
cute the  plan  of  taking  the  entire  population  of  this 
country  by  the  throat  to  compel  them  to  effect  the 
settlement  of  a  local  labor  trouble  in  Chicago,  was  that 
of  a  genius,  however  misdirected  The  Governor  of 
Illinois,  who  coined  the  phrase  "  government  by  injunc- 
tion," says  that  the  Federal  courts  have  added  legisla- 
tive and  executive  functions  to  their  ordinary  judicial 
office,  in  that  they  have  declared  in  their  orders  of  in- 
junction that  to  be  unlawful  which  was  lawful  before, 
and  have  sought  to  enforce  obedience  to  such  orders  by 
an  army  of  marshals  and  soldiers.  It  is  a  little  difficult 
to  understand  the  working  of  a  mind  having  the  dis- 
cipline of  a  legal  training  and  the  experience  of  judicial 
service,  which  can  honestly  and  sincerely  maintain  (and 
I  do  not  wish  to  impugn  the  sincerity  of  the  Governor 


THE  FEDERAL  JUDICIARY  329 

of  Illinois)  that  the  combination  described  in  the  bill  in 
the  Debs  case  and  enjoined  in  the  order  of  injunction 
was  not  unlawful.  If  it  was  not  so,  then  there  is  no 
law  in  this  country  securing  the  right  of  private  prop- 
erty, no  law  authorizing  the  Federal  government  to 
operate  the  mails,  no  law  by  which  the  regulation  of 
interstate  commerce  is  vested  in  the  General  Government. 
A  public  nuisance  more  complete  in  all  its  features 
than  that  which  Debs  and  his  colleagues  were  engaged 
in  furthering  can  not  be  imagined.  Such  nuisances  have 
been  frequently  enjoined  by  courts  of  equity  on  the 
bill  of  the  Attorney-General.  Was  there  any  doubt  that 
Debs  proposed  to  continue  his  unlawful  course  unless 
restrained?  Was  there  any  doubt  that  the  injury  would 
be  irreparable  and  could  not  be  compensated  for  by 
verdict  at  law?  Was  it  for  the  court  to  hesitate  to 
issue  its  process  because  it  had  reason  to  believe  that 
it  would  not  be  obeyed?  The  novelty  involved  in  the 
application  of  such  a  remedy  to  such  an  injury  was  not 
that  injuries  of  the  same  general  character  had  not  be- 
fore been  restrained  by  injunction,  but  only  that  never 
before  in  the  history  of  the  courts  had  injuries  of  this 
kind  been  so  enormous  and  far-reaching  in  their  effect. 
It  was  not  that  men  had  not  before  been  ordered  by 
process  of  court  to  desist  from  such  injuries,  but  never 
before  had  so  many  men  been  engaged  in  inflicting  them. 
Nor  can  it  affect  the  power  of  Federal  courts  to  remedy 
wrongs  within  their  lawful  cognizance  that  the  wrong 
would  have  been  prevented  if  the  executive  of  another 
sovereignty  than  that  under  which  they  are  constituted 
had  acted  promptly  to  suppress  it.  The  Federal  courts 
did  not  assume  executive  powers  any  more  than  they 
do  so  when  they  issue  any  process  to  the  marshal,  and 
the  marshal  as  the  subordinate  of  the  President  executes 


RECENT  CRITICISM  OF 

it.  The  extent  of  the  actual  and  threatened  injury  and 
the  possible  resistance  to  lawful  process  required  the 
marshal  to  call  to  his  assistance  much  aid,  but  it  is  a 
latter-day  doctrine  that  a  court  is  usurping  the  execu- 
tive function,  in  calling  upon  the  executive  to  use  addi- 
tional force  to  avoid  a  possible  defeat  of  its  lawful  proc- 
ess. The  conservative  course  of  the  President  and  the 
Attorney-General  in  first  applying  to  the  courts  for 
process  and  the  subsequent  firmness  exhibited  by  those 
officers  in  executing  that  process  by  all  the  means  avail- 
able, will  cause  the  country  to  hold  them  always  in 
grateful  remembrance.  The  duty  of  the  courts  to  act 
on  this  initiative  was  so  plain  that  while  it  does  not  en- 
title them  to  any  especial  commendation,  it  would  seem 
that  it  should  protect  them  from  serious  attack. 

The  real  objection  to  the  injunction  is  the  certainty 
that  disobedience  will  be  promptly  punished  before  a 
court  without  a  jury.  It  is  hardly  necessary  to  defend 
the  necessity  for  such  means  of  enforcing  orders  of 
court.  If  the  court  must  wait  upon  the  slow  course  of  a 
jury  trial  before  it  can  compel  a  compliance  with  its 
order,  then  the  efficacy  of  its  process  would  be  seriously 
impaired.  Has  any  injustice  been  done  to  Debs  in  his 
trial  by  the  court?  Is  there  the  slightest  doubt  in  the 
mind  of  his  fiercest  supporter  that  he  violated  the  in- 
junction? Why,  then,  complain  of  his  conviction  before 
a  tribunal  authorized  to  try  him?  The  argument  seems 
to  be  that  because  many  men  are  determined  to  violate 
the  rights  of  the  public  and  their  fellow-citizens  in  spite 
of  the  lawful  orders  of  the  Federal  court  restraining 
them  from  so  doing,  they  should,  on  account  of  their 
number  and  popular  strength,  have  a  right  which  no 
Anglo-Saxon  has  hitherto  ever  enjoyed,  to  interpose 
a  jury  trial  between  them  and  the  enforcement  of  a 


THE  FEDERAL  JUDICIARY  331 

court's  order.  If  the  criticisms  under  discussion  are 
directed  against  the  existence  of  courts,  then  their 
weight  depends  on  different  considerations  from  those 
which  apply  on  the  assumption  that  courts  are  to  be 
maintained  for  the  purpose  of  remedying  wrongs.  But 
they  are  professedly  based  on  the  Constitution  of  the 
United  States,  and  that  certainly  contemplates  courts, 
whose  decrees  shall  be  enforced,  however  much  resisted, 
and  which  shall  not  be  merely  advisory  councils  whose 
efficacy  depends  on  their  powers  of  persuasion. 

I  am  aware  that  there  were  many  conservative,  un- 
prejudiced and  patriotic  citizens  in  this  country,  many 
of  them  members  of  the  bar  and  of  this  Association, 
whose  anxiety  that  the  Chicago  riots  should  be  sup- 
pressed was  as  great  as  that  of  anyone,  and  yet  who 
were  of  opinion  that  the  action  of  the  Federal  courts  in 
issuing  the  injunctions,  which  were  issued  on  the  applica- 
tion of  the  Attorney-General,  was  an  unwise  stretching 
of  an  equitable  remedy  to  meet  an  emergency  which 
should  have  been  met  in  other  ways.  To  all  such  persons, 
I  commend  the  reading  of  Mr.  Justice  Brewer's  opinion 
in  the  Debs  case.  It  is  a  great  judgment  of  a  great 
court,  and  makes  it  as  clear  as  midday  that  the  process 
therein  issued  was  justified  by  every  precedent,  and  was 
the  highest  duty  of  the  court.  The  exercise  of  that 
duty  has,  however,  only  increased  the  number  of  those 
who  sincerely  believed  that  the  Federal  courts  are  con- 
stituted to  foster  corporate  evils  and  to  destroy  all 
effort  by  labor  to  maintain  itself  in  its  controversies 
with  corporate  capital. 

I  have  reached  the  end  of  a  much  too-long  discussion 
of  the  relation  of  the  Federal  judiciary  to  some  of  the 
important  issues  of  the  day.  It  will  not  be  surprising 
if  the  storm  of  abuse  heaped  upon  the  Federal  courts 


832      CRITICISM  OF  FEDERAL  JUDICIARY 

and  the  political  strength  of  popular  groups,  whose 
plans  of  social  reform  have  met  obstruction  in  those  tri- 
bunals, shall  lead  to  serious  efforts  through  legislation 
to  cut  down  their  jurisdiction  and  cripple  their  effi- 
ciency. If  this  comes,  then  the  responsibility  for  its 
effects,  whether  good  or  bad,  must  be  not  only  with 
those  who  urge  the  change,  but  also  with  those  who  do 
not  strive  to  resist  its  coming. 

The  earliest  assaults  upon  the  Federal  judiciary  and 
their  harmless  character  in  the  light  of  the  event,  recon- 
cile one  to  much  of  the  fiery  invective  and  blood-curd- 
ling epithets  hurled  at  men  who,  equally  with  their  ac- 
cusers, are  American  freemen,  impressed  with  the  abso- 
lute necessity  for  maintaining  sacred  the  guaranties  of 
life,  liberty  and  property,  and  who  are  probably  not 
more  in  love  with  corruption  and  greed,  or  more  dis- 
posed to  crush  the  humble  and  worthy,  than  the  average 
of  their  fellow-citizens. 

The  saving  grace  of  American  humor,  which  delights 
in  the  contemplation  of  grotesque  exaggeration,  has 
often  saved  us  from  domestic  turbulence,  which  the  tur- 
gid exuberance  of  denunciatory  language  might  other- 
wise have  excited  against  lawfully-constituted  au- 
thority; and  it  may  be  that  the  same  useful  trait  will 
prevent  the  success  of  the  present  agitators  against  the 
Federal  courts. 

But  whatever  fate  betide  the  Federal  judiciary,  I 
hope  that  it  may  always  be  said  of  them,  as  a  whole, 
by  the  impartial  observer  of  their  conduct,  that  they 
have  not  lacked  in  the  two  essentials  of  judicial  moral 
character,  a  sincere  desire  to  reach  right  conclusions 
and  firmness  to  enforce  them. 


ADMINISTRATION  OF  CRIMINAL  LAW 

to  the  graduating  classes  of  the  law  school  of 
yale  university  on  june  26,  1905 

Mr.  President,  Mr.  Dean  and  Gentlemen  of  the 
Yale  Law  School:  One  of  the  most  useful  results  of 
our  recent  territorial  expansion  for  those  who  have  had 
to  do  with  uniting  our  new  possessions  with  this  country 
and  adjusting  certain  of  the  Spanish  codes  which  we 
found  in  force  in  Porto  Rico  and  the  Philippines  to  the 
new  American  sovereignty,  has  been  the  comparative 
study  made  necessary  of  the  two  great  systems  of  law 
— the  Roman,  or  Civil  Law,  and  the  Anglo-Saxon,  or 
Common  Law.  It  must  be  admitted  that  those  of  us 
who  have  been  educated  in  the  principles  of  the  common 
law  and  have  not  extended  our  study  much  into  general 
jurisprudence,  are  apt  to  be  narrow  in  our  prejudices 
in  favor  of  the  common  law  and  are  prone  to  think  that 
there  is  very  little  for  us  to  learn  from  the  civil  law 
which  can  be  usefully  adopted  by  a  government  in  which 
the  liberty  of  the  individual  is  held  so  sacred,  and  the 
power  of  the  government  towards  the  subject  or  the 
citizen  is  restrained  by  such  careful  regulations  as  in 
England,  in  America  or  any  of  the  popular  self-govern- 
ments for  which  either  of  those  countries  is  responsible. 
But  certainly  when  in  actual  practice  the  common 
law  lawyer  is  brought  to  the  study  of  the  beautifully 
simple  and  exactly  comprehensive  language  of  the  civil 
code  governing  the  rights  between  individuals,  he  be- 
gins to  feel  the  veneration  that  comes  from  consciously 
viewing  the  work  of  twenty  centuries  of  jurists   and 

333 


384    ADMINISTRATION  OF  CRIMINAL  LAW 

lawgivers  who  have  been  struggling  during  all  that 
period  to  simplify  and  make  lucid  the  rules  of  law  and 
to  reduce  it  to  the  science  that  under  the  civil  code  it 
certainly  has  become.  When  he  comes  to  an  examina- 
tion of  the  political  or  governmental  theory  of  the  civil 
law,  he  finds  more  reason  for  his  pride  in,  and  love  of, 
the  common  law  in  this,  that  under  the  civil  law  the  state 
seems  a  separate  entity,  different  from  the  people  who 
constitute  it,  different  from  the  individual  who  comes 
into  contact  with  it — an  entity  whose  interest  is  to  be 
more  guarded  and  protected  than  that  of  any  other  in 
the  community,  and  for  the  welfare  of  this  entity  it  is 
the  principle  of  the  civil  law  that  the  interest  of  the 
individual  must  yield,  while  at  the  common  law  the 
theory  is  that  the  state  is  but  an  aggregation  of  the 
individual,  a  great  partnership  in  which  he  has  a  voice. 
In  the  common  law,  the  spirit  manifested  in  the  rule 
caveat  emptor — that  every  man  must  look  after  him- 
self— leaves  blunt  and  harsh  results  (where  actual  and 
affirmative  fraud  is  not  committed)  which  the  civil  law 
would  ameliorate  by  requiring  one  individual  to  treat 
the  other  with  more  equity,  with  more  morality  one  may 
say,  with  more  care  that  the  other  shall  not,  by  his 
own  neglect,  lose  his  rights.  There  is  more  of  paternal- 
ism in  the  civil  law — more  care  for  the  subject  by  the 
government — less  disposition  to  let  individuals  work  out 
their  rights  between  them.  The  common  law  stands 
for  the  utmost  liberty  of  the  individual,  and  as  a  price 
of  this  liberty  it  imposes  upon  the  person  enjoying  it 
the  burden  of  looking  out  for  himself. 

When  we  leave  the  subject  of  civil  rights  and  come  to 
the  punishment  of  the  individual  for  offenses  against 
the  state,  we  find  in  the  civil  law  greater  anxiety  that 
the  state  should  be  protected  against  crime,  than  we 


ADMINISTRATION  OF  CRIMINAL  LAW    335 

do  in  the  common  law.  The  civil  lawyer  looks  at  the 
crime  more  from  the  standpoint  of  the  government  than 
from  that  of  the  individual  and  more  from  the  impor- 
tance to  the  community  that  crime  shall  be  not  only 
punished  but  prevented,  while  there  runs  all  through 
the  common  law  the  anxiety  that  the  prosecution  of 
crime  may  not  be  used  by  the  government  to  oppress 
the  individual  and  that  there  shall  be  thrown  about  the 
individual  safeguards  so  great  as  to  give  impression 
that  at  common  law  the  liberty  of  the  individual  is  on 
the  whole  of  greater  importance  than  the  safety  of  the 
community  from  crime.  Of  course  between  the  trend 
of  the  one  system  and  the  trend  of  the  other  is  the  golden 
mean  of  the  legislator  and  government  maker  by  which 
shall  be  secured  the  protection  of  society  without  the 
oppression  of  the  individual. 

When  the  common  law  lawyer  faces  the  problem  of 
reforming  the  criminal  laws  and  procedure  of  a  country 
that  has  heretofore  been  governed  by  the  civil  law,  he 
feels  certain  that  here  at  least  is  room  for  a  wholesome 
change  and  the  introduction  into  the  patient  of  a  very 
large  dose  of  the  principles  which  lie  at  the  foundation 
of  the  prosecution  of  crime  and  are  supposed  to  involve 
the  protection  of  the  rights  of  civil  liberty  in  the  in- 
dividual. 

The  institution  of  the  writ  of  habeas  corpus  which, 
though  a  civil  process,  and  not  a  criminal  action,  is 
generally  used  to  test  the  validity  of  some  pretended 
criminal  process,  is  attended  with  unmixed  good.  The 
principle  that  no  man  shall  be  confined  save  under  due 
legal  process  is  as  well  known  to  the  civil  as  to  the  com- 
mon law,  but  the  difference  between  the  two  systems 
from  a  political  and  practical  standpoint  is  well  illus- 
trated in  respect  to  the  enforcement  of  the  principle. 


836   ADMINISTRATION  OF  CRIMINAL  LAW 

At  the  civil  law  the  rule  that  no  man  shall  be  illegally 
confined  is  operative  upon  the  conscience  of  the  judges 
and  the  jailers,  and  if  their  consciences  do  not  move 
them,  the  poor  prisoner  and  his  friends  are  without  a 
remedy.  At  the  common  law  the  prisoner  or  his  friends 
has  the  practical  remedy  of  the  writ,  which  being  of 
high  privilege  he  may  obtain  for  the  asking  of  any 
judge,  who  runs  the  risk  of  incurring  the  heaviest 
penalty  himself  if  he  refuse.  This  is  but  one  of  the 
many  instances  in  which  our  Anglo-Saxon  ancestors 
hammered  out  their  civil  liberty  by  securing  from  their 
would-be  royal  oppressors  not  general  declarations  of 
principles  of  freedom  like  a  French  constitution,  but 
distinct  and  definite  promises  that  certain  rules,  not  of 
substantive,  but  of  adjective  law  should  obtain.  To 
them,  it  was  the  securing  of  the  means  by  which  they 
could  themselves  secure  their  liberty  that  must  be  pre- 
served, for  with  the  machinery  at  hand,  with  the  pro- 
cedure available  there  was  no  difficulty  in  maintaining 
the  ultimate  object,  civil  rights  and  liberty.  Run 
through  the  Magna  Charta  of  1215,  the  Petition  of 
Right  of  1625,  and  the  Bill  of  Rights  of  1688,  the 
great  charters  of  English  liberty,  and  you  find  in  them 
an  insistence,  not  on  general  principles,  but  upon  pro- 
cedure. Take  the  most  comprehensive — "  No  man  shall 
be  deprived  of  life,  liberty  or  property  without  due 
process  of  law  " :  this  does  not  attempt  to  define  the 
cases  in  which  a  man  shall  be  entitled  to  life,  liberty  and 
property,  but  points  to,  and  insists  upon,  the  necessity 
for  a  legal  procedure  by  which  it  shall  be  done. 

Then  the  requirement  that  no  man  shall  be  convicted 
save  by  a  jury  of  his  peers.  That  again  is  mere  pro- 
cedure. So  too  that  he  shall  be  informed  of  the  ac- 
cusation against  him,  that  he  shall  be  confronted  by  the 


ADMINISTRATION  OF  CRIMINAL  LAW    337 

witnesses ;  that  he  shall  not  be  compelled  to  testify  in  a 
criminal  case  against  himself;  that  he  shall  not  be  con- 
victed of  treason  save  by  evidence  of  two  witnesses  to 
the  overt  act;  that  he  shall  not  be  subject  to  unreason- 
able searches;  that  he  shall  not  be  put  twice  in  jeop- 
ardy for  the  same  offense — all  these  are  but  instances 
of  judicial  or  other  procedure  by  which  general  and 
ultimate  rights  could  be  maintained  and  protected.  An 
Anglo-Saxon  had  but  little  use  for  declarations  of  ab- 
stract principles  that  rested  for  their  preservation  on 
the  consciences  of  their  rulers. 

The  means  of  securing  civil  rights  and  preserving  the 
individual  from  the  oppression  of  the  government  which 
I  have  mentioned  above,  have  been  embodied  in  the  Fed- 
eral and  State  constitutions,  and  as  they  served  their 
purposes  as  well  in  ancient  times  when  the  battle  for 
civil  liberty  was  fought  and  won,  the  first  impulse  of  the 
American  lawyer  is  to  apply  them  all  as  a  panacea  to 
the  government  and  criminal  procedure  of  our  new 
possessions.  But  further  investigation,  with  a  deepen- 
ing sense  of  responsibility  for  the  government  of  a  body 
of  people  whose  welfare  has  been  forced  upon  us  as  a 
sacred  trust,  leads  to  a  much  more  conservative  attitude 
in  respect  of  the  needed  changes  in  the  existing  pro- 
cedure. We  can  not  escape  a  re-examination  of  the 
reasons  for  the  constitutional  limitations  I  have  been 
discussing.  We  must  cease  to  regard  them  as  fetiches 
to  be  worshiped  without  reason  and  simply  because  they 
are.  We  must  follow  them  to  their  source,  trace  their 
development  and  elaboration  or  modification  due  to  con- 
temporaneous needs,  and  determine  whether  their  exist- 
ence to-day  is  due  rather  to  a  veneration  for  the  great 
use  they  served  in  the  past  than  to  any  present  utility. 
We  have  no  right  to  force  on  the  Porto  Ricans  or  the 


ADMINISTRATION  OF  CRIMINAL  LAW 

Filipinos  institutions  of  our  own  which  have  proved  of 
the  highest  benefit  to  us,  unless  we  can  see,  on  other  than 
mere  sentimental  grounds  connected  with  our  own  his- 
tory, that  such  institutions  will  now  prove  beneficial  to 
them  in  their  present  condition. 

The  great  bulwark  and  protection  of  the  individual 
at  common  law  against  the  power  of  the  government 
and  the  king,  exerted  through  judges  removable  at  will 
in  criminal  prosecutions  for  political  offenses,  was  trial 
by  jury.  I  have  no  time,  if  I  could  do  so,  to  trace  the 
growth  of  this  venerable  tribunal  from  a  mere  collec- 
tion of  individuals  in  the  vicinage  who  were  generally 
witnesses  of  the  facts  they  were  assembled  to  adjudge, 
to  the  present  body  of  twelve  persons  selected  from  the 
community  in  which  the  crime  is  committed,  but  required 
to  be  impartial  and  so  wholly  without  knowledge  of  the 
facts  as  witnesses. 

Suffice  it  to  say  that  as  an  effect  of  the  trend  toward 
civil  liberty  and  popular  rights  in  the  French  Revolu- 
tion and  the  uprising  of  1848,  the  trial  by  jury  in 
criminal  cases  was  adopted  in  France,  in  Belgium,  in 
Germany,  in  Norway  and  Sweden,  in  Spain,  in  Italy 
and  Russia  except  in  trials  for  political  offenses,  and  is 
now  in  use  in  these  countries.  This  constitutes  a  trib- 
ute to  its  value  as  an  institution  in  countries  in  which  it 
did  not  have  its  beginning  and  growth,  and  perhaps 
would  furnish  a  solid  reason  for  our  adopting  it  in 
Porto  Rico  and  the  Philippines.  It  has  been  adopted 
in  Porto  Rico.  It  has  not  been  adopted  in  the  Philip- 
pines. I  do  not  think  it  too  much  to  say,  however,  that 
it  has  proven  to  be  a  failure  thus  far  in  Porto  Rico. 

The  first  question  was  in  the  Philippines,  shall  it  be 
adopted  in  civil  cases?  No  civil  law  country,  I  think, 
has  adopted  it  for  this  purpose.     Shall  we  do  so?     It 


ADMINISTRATION  OF  CRIMINAL  LAW    339 

would  seem  unwise.  In  the  first  place,  it  is  by  no  means 
clear  that  in  our  own  jurisprudence  trial  by  jury  in  civil 
cases  is  an  unmixed  good.  It  is  true  that  in  the  Federal 
Constitution  the  right  of  trial  by  jury  in  cases  at  com- 
mon law  involving  more  than  twenty  dollars  is  secured 
by  fundamental  mandate  in  all  courts  in  the  United 
States.  ,  But  when  we  examine  as  a  whole  the  civil  liti- 
gation in  our  courts,  we  find  the  tendency  is  toward  trial 
without  a  jury  in  all  cases  but  suits  for  personal  in- 
jury against  corporations.  In  respect  to  jury  trials  in 
civil  actions  in  Anglo-American  law,  we  find  one  of  these 
anomalies,  entirely  illogical,  but  easily  explainable  on 
historical  grounds,  that  would  disgust  a  civilian,  but 
which  only  endears  the  system  to  one  of  Anglo-Saxon 
origin  and  education. 

When  an  Anglo-Saxon  wished  to  mend  his  structure 
of  jurisprudence,  he  merely  added  a  room  where  it  was 
needed  without  any  regard  to  the  general  symmetrical 
appearance  of  the  building,  and  with  the  addition  of 
many  rooms  for  various  reasons,  other  parts  have  be- 
come useless  but  remain  to  testify  to  the  history  of  the 
growth  of  the  structure.  Much  more  than  half  the 
civil  suits  now  brought  are  what  would  have  been  called 
actions  in  equity  before  the  modern  state  codes  of  pro- 
cedure had  united  common  law  actions  and  equitable 
action  in  one  form  called  a  civil  action.  Equity,  as  you 
know,  was  a  system  of  remedial  procedure  which  grew 
up  side  by  side  with  the  ordinary  common  law  practice 
and  was  instituted  in  early  days  by  the  King,  to  whom 
appeals  were  made  against  the  rigors  and  injustice  of 
his  own  courts.  He  delegated  the  lord  keeper  of  his 
great  seal,  then  usually  an  ecclesiastic,  the  power  to 
moderate  the  severity  and  inelasticity  of  the  common 
law  methods,  and  the  ecclesiastic   statesman,  nothing 


340    ADMINISTRATION  OF  CRIMINAL  LAW 

loath  to  exercise  power  for  the  glory  of  his  masters, 
Divine  and  temporal,  introduced  methods  of  remedial 
justice  which  he  derived  from  the  canon  law  and  the 
ecclesiastical  courts.  With  this  beginning  came  the 
great  body  of  equity  jurisprudence  which,  as  I  say,  is 
the  basis  for  a  large  majority  of  civil  suits  brought  to- 
day, certainly  suits  for  personal  injury  against  cor- 
porations are  excluded.  In  suits  in  equity  the  judge 
hears  and  decides  the  issue  of  fact.  The  issues  may  be, 
and  often  are,  very  similar  to  those  arising  in  suits  at 
common  law,  the  genuineness  of  a  signature,  the  exist- 
ence of  fraudulent  motive,  the  identity  of  an  individual, 
damage  to  business  by  violation  of  patents,  trade  marks 
or  contract  rights,  and  all  the  variety  of  issues  pre- 
sented in  civil  litigation.  Now  the  Federal  constitution 
requires  that  such  issues  arising  at  common  law  shall  be 
tried  by  a  jury,  but  if  in  an  equity  suit  the  court  may 
try  them.  Since  the  abolition  of  the  distinction  be- 
tween law  and  equity  in  civil  actions  in  our  codes  of 
procedure,  it  requires  a  lawyer  to  tell  whether  a  suit 
brought  is  in  equity  or  law.  Certainly  a  constitutional 
mandate  that  requires  a  jury  in  less  than  half  the  civil 
issues,  and  only  in  those  when  in  a  certain  form  of  ac- 
tion, distinguishable  only  by  a  lawyer,  can  hardly  be 
said  to  rest  on  any  very  broad  and  sound  principles. 
Of  course  in  suits  for  personal  injury  against  corpora- 
tions, the  plaintiff  relies  on  the  supposed  sympathy  of 
twelve  laymen  with  the  poor  plaintiff  against  the  rich 
corporation,  both  to  find  the  facts  in  favor  of  the  plain- 
tiff and  also  to  swell  the  damages  to  a  large  sum.  But 
this  hardly  constitutes  a  reason  for  maintaining  the 
jury  in  a  system  which  is  supposed  to  dispense  justice 
to  all,  whether  rich  or  poor — impartially.  The  aboli- 
tion of  the  jury  in  civil  cases  would  relieve  the  public 


ADMINISTRATION  OF  CRIMINAL  LAW    341 

of  a  great  burden  of  expense,  would  facilitate  the  hear- 
ing of  all  civil  suits,  and  would  not,  I  think,  with  proper 
appeal  deprive  any  litigant  of  all  he  is  entitled  to,  an 
impartial  hearing.  Of  course,  it  will  never  be  done  in 
courts  of  the  United  States  and  perhaps  never  in  any 
of  the  states,  although  in  some  of  them  the  tendency  is 
strong  in  that  direction.  However  this  may  be  in  view 
of  present  conditions,  we  are  not  called  upon  to  intro- 
duce the  jury  in  civil  cases  into  the  Philippines. 

In  the  matter  of  the  criminal  procedure,  the  question 
is  very  different. 

In  a  country  where  a  part  of  the  judges  are  aliens, 
it  would  add  much  to  the  satisfaction  of  the  people 
if  a  part  of  the  judicial  tribunal  were  made  up  of  a 
jury  of  natives,  and  if  this  were  consistent  with  the 
safety  of  the  community,  those  responsible  for  the  new 
government  would  certainly  introduce  the  jury  system 
in  the  trial  of  crimes.  The  whole  theory  of  the  trial  by 
jury  is  that  out  of  the  body  of  the  community  you  may 
select,  at  haphazard,  twelve  men  who  will  be  so  deeply 
impressed  with  the  necessity  of  punishing  crime  on  the 
one  hand  and  of  allowing  innocent  defendants  to  escape 
on  the  other  hand,  that  they  will  decide  truly  and  justly 
as  between  the  community  and  the  defendant.  The  sys- 
tem assumes  a  sense  of  responsibility  in  the  ordinary 
citizen  subject  to  jury  duty  for  the  good  working  of 
the  government  and  for  the  interests  of  society  at  large, 
which  will  overcome  the  natural  disposition  to  avoid  in- 
flicting punishment  on  another,  and  will  enable  the  jury 
to  find  the  verdict  as  the  law  and  evidence  shall  require. 
Manifestly  such  a  tribunal  would  have  no  place  among 
an  ignorant  people,  or  indeed  even  among  a  people  who 
are  somewhat  educated,  if  they  have  not  inculcated  in 
them  a  sense  of  responsibility  for,  and  of  sharing  in,  the 


342    ADMINISTRATION  OF  CRIMINAL  LAW 

government.  Such  people  are  likely  to  prove  unworthy 
jurors  and  to  be  affected  in  all  their  verdicts  by  their 
emotions  and  by  every  other  motive  than  that  which 
should  control  them,  to  wit,  the  well-being  of  society. 
It  is  this  sense  of  justice  which  is  implanted  naturally 
in  the  Anglo-Saxon  breast,  but  which  is  absent  in  the 
Porto  Rican  and  the  Filipino.  Its  absence  disqualifies 
either  from  filling  the  measure  of  stiffness  and  con- 
servativeness  of  character  required  to  make  a  proper 
juryman. 

Another  difficulty  involved  in  introducing  the  jury 
system  into  the  Philippine  Islands,  and  indeed  into  any 
civil  law  country,  is  the  absence  of  a  code  of  evidence 
without  which  the  jury  system  is  not  likely  greatly  to 
promote  just  findings  on  issues  presented.  In  the  Anglo- 
American  law,  there  is  an  extensive  series  of  rules  gov- 
erning the  admission  of  evidence,  which  now  may  al- 
most be  called  a  code  of  evidence,  which  had  its  origin, 
as  Professor  Thayer  of  Harvard  so  clearly  shows,  in 
the  necessity  for  protecting  the  jury  in  its  considera- 
tion of  issues  brought  before  it,  from  being  led  astray 
and  misled  by  evidence  of  a  kind  likely  to  have  greater 
power  of  persuasion  than  judges  and  men  of  affairs  from 
wide  experience  thought  it  ought  to  have.  Some  of  the 
rules  of  evidence  seem  arbitrary,  but  generally  the 
rules  of  relevancy  and  competency  are  based  upon  the 
long  experience  in  human  affairs.  It  is  judge-made 
law  which  has  been  worked  out,  as  Professor  Thayer 
shows,  to  meet  the  exigencies  of  a  trial  by  laymen  not 
experienced  in  hearing  cases,  who  would  not,  with  every- 
thing allowed  to  be  presented  to  them,  winnow  the  wheat 
from  the  chaff.  The  civil  law  has  no  such  code.  The 
question  whether  evidence  is  relevant  to  an  issue  and  will 
assist  in  its  decision,  is  largely  a  matter  in  the  discre- 


ADMINISTRATION  OF  CRIMINAL  LAW    34S 

tion  of  the  judges,  in  hearings  at  the  civil  law.  We 
can  well  remember  the  astonishment  and  almost  horror 
that  thrilled  this  country  during  the  second  trial  of 
Dreyfus  before  the  court  martial,  when  witnesses  were 
allowed  to  testify  to  all  sorts  of  hearsay  tending  to 
show  Dreyfus'  guilt,  and  French  generals  were  allowed 
to  go  before  the  court  and  testify  with  their  hands  on 
their  hearts  of  their  conviction  that  Dreyfus  was  guilty, 
without  really  having  any  personal  knowledge  on  the 
subject  at  all.  I  am  not  prepared  to  say  that  the  Drey- 
fus trial  did  not  go  beyond  what  is  ordinarily  permitted 
in  a  French  court.  I  think  it  did.  But  I  am  certain 
that  no  such  rules  of  evidence  as  obtain  in  our  pro- 
cedure are  known  to  the  civil  law  countries  of  Europe 
unless  adopted  within  very  recent  years.  It  has  been 
necessary  for  use  in  the  Philippine  Islands  to  intro- 
duce a  code  of  evidence  for  the  trial  of  crimes  even 
without  a  jury,  which  is  also  applicable  to  the  trial  of 
civil  cases.  By  order  of  President  McKinley  all  the 
constitutional  protections  to  the  defendant  in  a  criminal 
case  were  extended  to  defendants  in  criminal  cases  in 
the  Philippines  except  the  right  of  trial  by  jury. 

I  am  not  certain  that  in  a  new  country  this  was  en- 
tirely wise.  When  examined  as  an  original  proposi- 
tion, the  prohibition  that  the  defendant  in  a  criminal 
case  shall  not  be  compelled  to  testify  seems  in  some 
aspects  to  be  of  doubtful  utility.  If  the  administra- 
tion of  criminal  law  is  for  the  purpose  of  convicting 
those  who  are  guilty  of  crime,  then  it  seems  natural  to 
follow  in  such  a  process  the  methods  that  obtain  in 
ordinary  life.  If  anything  has  happened  and  it  is  im- 
portant to  discover  who  is  the  author  of  it,  the  first 
impulse  of  the  human  mind  is  to  inquire  of  the  person 
suspected  whether  he  did  it  and  to  cross-examine  him  as 


844   ADMINISTRATION  OF  CRIMINAL  LAW 

to  circumstances.  Certainly  this  is  the  domestic  rule 
by  which  your  wife  or  your  mother  proceeds  to  find  out 
who  it  is  that  broke  the  window,  who  it  is  that  stole 
the  jam  from  the  pantry,  or  why  it  is  that  the  sweeping 
has  not  been  done  by  the  person  charged  with  that  duty. 
She  goes  to  the  suspected  culprit  and  asks  the  questions 
natural  under  such  circumstances,  to  see  whether  her 
suspicion  of  guilt  is  well  founded.  Now  the  proposition 
that  it  is  unjust  to  call  upon  the  person  suspected  of  a 
crime  to  tell  of  his  connection  with  it  is  at  first  sight 
untenable.  Why  is  it  unjust?  If  he  is  not  guilty,  will 
he  not  have  the  strongest  motive  for  saying  so,  and  if 
he  is  guilty  and  seeks  to  escape  liability,  will  he  not  use 
every  effort  to  make  his  conduct  consistent  with  his 
innocence?  Why,  then,  does  it  expose  the  defendant  to 
improper  treatment  if  an  officer  of  the  law  at  once  be- 
gins to  interrogate  him  concerning  his  guilt?  But  the 
answer  is,  he  has  the  right  to  consult  counsel.  He 
should  not  be  hurried  into  statements  which  he  may 
subsequently  desire  to  retract.  In  other  words,  he 
should  be  given  an  opportunity,  after  he  has  committed 
the  crime,  to  frame  in  his  mind  some  method  by  which 
he  can  escape  conviction  and  punishment.  I  am  in- 
clined to  think  that  the  expression :  "  No  person  shall  be 
compelled  to  testify  against  himself,"  if  traced  back  to 
its  original  source,  had  reference  to  a  system  of  torture 
which  did  prevail  in  the  time  of  the  early  English  kings, 
and  which  was  intended  to  denounce,  not  the  mere  call- 
ing of  a  defendant  to  testify  and  inviting  him  by  ques- 
tions so  to  do,  but  the  actual  compulsion  of  evidence 
by  physical  means.  Now,  as  Bentham  shows,  the  prin- 
ciple does  not  include  compulsion;  it  is  construed  to 
mean  that  before  the  jury  or  tribunal  trying  the  de- 
fendant, he  may  not  be  called  upon  to  answer  questions. 


ADMINISTRATION  OF  CRIMINAL  LAW    345 

Bentham's  criticism  of  this  rule  is  well  known.  He 
says  it  can  be  only  supported  by  the  fox-hunter's  rea- 
son— that  it  is  right  that  the  criminal  or  the  fox  should 
have  a  little  start,  and  this  advantage  in  the  beginning, 
in  favor  of  the  defendant  and  against  the  state,  is  the 
refusal  of  the  law  to  allow  the  state  to  call  the  de- 
fendant to  prove  its  case.  It  makes  the  conviction  of 
the  criminal  a  game  which  is  played  out  under  certain 
rules,  and  the  interests  of  society  are  lost  sight  of.  At 
common  law,  the  defendant  was  not  allowed  to  testify, 
even  if  he  would,  but  that  rule  was  found  to  work 
harshly  against  innocent  men  who,  going  on  the  stand, 
might  explain  the  suspicious  circumstances  connecting 
them  with  the  crime  and  show  their  innocence;  so  that 
the  rule  for  years  in  this  country,  and  very  recently 
in  England,  is  that  the  defendant  may  take  the  stand 
if  he  will,  but  if  he  fails  to  take  the  stand  the  counselor 
for  the  prosecution  may  not  comment  on  his  failure  to 
do  so.  The  result  of  the  change  has  been,  I  think,  to 
lead  to  more  convictions  than  before,  for  a  jury  may  be 
charged  as  explicitly  as  possible  to  disregard  the  fact 
that  the  defendant  does  not  go  on  the  stand,  but  it  is 
impossible  to  eradicate  from  the  minds  of  sensible  men 
the  impression  that  if  one  who  is  charged  with  the  crime 
refuses  to  explain  by  his  own  evidence  that  he  was  not 
guilty,  that  the  reason  for  his  so  doing  is  because  he  is 
afraid  he  can  not  so  explain. 

Another  principle  of  the  law  of  evidence  embodied  in 
the  constitutional  limitations  is  that  the  defendant  must 
be  confronted  with  the  witnesses  who  testify  against  him. 
This  seems  to  impose  unnecessary  hardship  upon  the 
government,  because  it  certainly  would  not  injure  the 
defendant  if  depositions  were  taken  and  the  defendant 
or  his  counsel  were  permitted  to  cross-examine.     It  is  a 


346   ADMINISTRATION  OF  CRIMINAL  LAW 

case  of  undue  tenderness  toward  the  defendant.  There 
is  no  such  restriction  upon  the  defendant  when  he  is 
seeking  to  prove  his  innocence,  for  he  may  use  deposi- 
tions without  number. 

The  limitation  upon  unreasonable  searches  is  another 
constitutional  restriction  which  has  been  used  to  save 
men  from  conviction.  Indeed,  uniting  that  with  the 
one  preventing  the  court  or  prosecutor  from  interrogat- 
ing the  defendant  as  to  his  guilt,  makes  it  impossible 
in  some  classes  of  cases  to  convict  persons  well  known  to 
be  guilty.  It  is  the  great  shield  which  the  powerful  and 
unlawful  trusts  and  violators  of  the  interstate  commerce 
laws  have  to  prevent  their  successful  prosecution.  It 
prevents  the  use  of  process  to  obtain  books  and  papers 
in  which  the  defendant  has  violated  the  law  or  has 
recorded  statements  showing  guilt.  Our  supreme 
courts  generally,  instead  of  restricting  the  operation  of 
these  constitutional  limitations,  have  given  them,  when- 
ever occasion  arose,  a  wider  scope  than  the  letter  of  the 
limitation  seemed  to  require,  in  the  interest,  it  was  said, 
of  the  liberty  of  the  individual. 

Then  there  is  the  general  rule  that  the  guilt  of  the 
defendant,  in  order  to  justify  conviction,  must  be 
shown  beyond  a  reasonable  doubt.  This  is  a  fair  and 
proper  rule,  and  has  usually  been  regarded  as  the  other 
side  of  the  rule  that  the  defendant  is  presumed  to  be 
innocent.  But  the  Supreme  Court  of  the  United  States 
has  recently  carried  it  to  such  a  point  by  construction 
as  to  treat  the  presumption  of  innocence,  not  as  being 
only  the  mere  counterpart  of  this  rule,  but  even  as  sub- 
stantive evidence  and  as  the  equivalent  of  a  witness 
testifying  affirmatively,  and  continuing  to  testify  from 
the  beginning  to  the  end  of  the  case  in  favor  of  the 
innocence  of  the  defendant,  a  construction  not  sustained 


ADMINISTRATION  OF  CRIMINAL  LAW    347 

by  Professor  Thayer,  and  seemingly  much  enlarging 
the  previous  operation  of  the  presumption  of  inno- 
cence, all  out  of  tenderness  to  the  defendant.  These 
rules  and  others  intended  to  make  it  as  difficult  as 
possible  to  convict  a  defendant  were  the  result  of  the 
savage  character  of  the  common  law  crimes,  when  the 
defendant  was  not  allowed  counsel,  and  there  were  one 
hundred  and  sixty  capital  offenses  at  common  law.  The 
judges,  of  course,  being  men  and  having  pity,  some- 
times seized  the  opportunity  themselves  to  act  as  coun- 
sel for  the  defendant,  and  introduced  the  rules  which 
we  have  alluded  to  and  maintained  them  in  the  interest 
of  mercy.  They  have  been  moderated  a  very  little, 
although  the  reason  for  them  has  long  passed  away. 
Defendants  are  now  allowed  counsel,  and  if  unable  to 
pay  counsel  the  state  employs  counsel  to  defend  them. 

Therefore  I  say  that  if  a  jurist  from  Mars  were  to 
come  down  to  earth  and  be  charged  with  the  duty  of 
framing  a  criminal  code  which  should  reach  the  golden 
mean  between  preserving  the  interests  of  society  by 
punishing  and  preventing  crime  on  the  one  hand  and 
saving  the  individual  charged  with  crime  from  liability 
of  unjust  conviction  on  the  other,  I  think  it  doubtful 
whether  he  would  adopt  the  constitutional  restrictions 
which  I  have  been  discussing.  The  general  law  of  evi- 
dence, especially  that  which  excludes  hearsay,  can  well 
be  defended  on  grounds  of  general  policy,  for  though 
hearsay  at  times  might  convict  in  proper  cases  where 
its  exclusion  acquits,  cross-examination  is  such  a 
searcher  of  the  truth  that  the  wisdom  of  ever  admitting 
hearsay  evidence  as  the  basis  for  the  conviction  of  crime 
may  well  be  doubted. 

In  adopting  a  system  such  as  we  have  been  consider- 
ing for  the  punishment  of  crime  for  a  new  country,  the 


348    ADMINISTRATION  OF  CRIMINAL  LAW 

first  and  most  apt  question  which  can  be  asked,  is, 
"  How  have  these  so-called  guarantees  of  liberty  of  the 
defendant  worked  on  the  whole?"  While  in  England, 
in  which  all  these  restrictions  are  still  observed,  crime 
is  punished  with  as  much  severity  and  uniformity  as 
the  public  weal  demands, — and  this  although  they  have 
the  trial  by  jury,  although  the  defendant  can  not  be 
compelled  to  testify,  and  although  all  the  other  rules  of 
evidence  to  which  I  have  referred  have  full  application, 
— how  is  it  in  this  country?  I  grieve  for  my  country 
to  say  that  the  administration  of  the  criminal  law  in  all 
the  States  of  the  Union  (there  may  be  one  or  two  ex- 
ceptions) is  a  disgrace  to  our  civilization.  We  are 
now  reaching  an  age  when  we  can  not  plead  youth, 
sparse  civilization,  newness  of  country,  as  a  cause  for 
laxity  in  the  enforcement  of  law. 

What  makes  the  difference  between  the  administration 
of  the  criminal  law  in  England  and  in  this  country? 
In  the  first  place,  while  the  jury  has  always  been  a  sacred 
and  untouched  part  of  the  tribunal  constituted  to  try 
crimes  in  England,  the  judges  upon  the  court  have  al- 
ways taken  and  maintained  their  part  at  common  law  in 
the  trial  of  every  defendant,  and  that  part  has  been, 
first,  the  retention  of  complete  control  over  the  method 
by  which  counsel  try  the  case,  restraining  them  to  the 
points  at  issue  and  preventing  them  from  diverting  the 
minds  of  the  jury  to  inconsequential  and  irrelevant  cir- 
cumstances and  considerations ;  and,  second,  the  power 
to  aid  the  jury  by  advising  them  how  to  consider  the 
evidence  and  expressing  an  opinion  upon  the  evidence, 
leaving,  however,  to  the  jury  the  ultimate  decision.  In 
this  way  the  sophistical  rhetoric  and  sentimental  ap- 
peals of  counsel  are  made  to  lose  their  misleading  effect, 
and  the  jurors  are  brought  to  a  sense  of  their  responsi- 


ADMINISTRATION  OF  CRIMINAL  LAW    349 

bility  in  deciding  the  actual  issues  of  fact  as  to  the 
guilt  or  innocence  of  the  defendant  upon  the  evidence 
before  them. 

Another  reason  why  English  justice  still  maintains 
its  reputation  for  certainty  of  punishment  is  the  fact 
that  there-  are  no  appeals  allowed  from  the  trial  in  the 
first  court  unless  the  judge  presiding  in  the  court  shall 
deem  certain  questions  of  law  of  sufficient  importance 
and  doubt  to  reserve  them  to  a  court  of  crown  cases 
reserved.  When,  therefore,  after  a  long  or  short  trial 
the  defendant  is  convicted,  the  conviction  is  final  in 
ninety-nine  cases  out  of  a  hundred. 

A  possible  third  reason  is  to  be  found  in  the  ability 
of  the  English  court  to  secure  the  best  character  of  men 
in  either  a  common  or  a  special  jury — men  charged 
with  the  earnest  responsibility  for  the  enforcement  of 
the  law. 

How  is  it  in  our  own  country?  We  find  that  these 
constitutional  limitations  adopted  centuries  ago  in  ten- 
derness to  the  defendant  and  which  have  to  some  extent 
Dutlived  their  usefulness  because  the  reasons  for  their 
adoption  have  ceased  to  be,  have  been  elaborated  in  their 
scope  and  operation  not  only  by  the  court  but  also  by 
the  legislatures,  because  thought  to  be  in  the  interest  of 
liberty.  And  this  has  made  them  greater  obstacles  in  the 
conviction  of  the  guilty.  The  institution  of  trial  by 
jury  has  come  to  be  regarded  as  a  fetich  to  such  an  ex- 
tent that  state  legislatures  have  exalted  the  power  of  the 
jury  and  diminished  the  power  of  the  court  in  the 
tribunal  made  up  of  both  for  the  hearing  of  criminal 
cases. 

Although  the  judiciary  of  nearly  all  the  states  is 
now  elective,  legislatures  have  seemed  to  resent  any  in- 
tervention by  the  judge  in  the  trial  of  the  cause  beyond 


350    ADMINISTRATION  OF  CRIMINAL  LAW 

a  very  colorless  and  abstract  statement  of  the  law  to  be 
applied  to  the  case.  It  is  manifestly  impossible  for  a 
judge  to  instruct  a  jury  in  the  law  well  and  possess  it 
of  the  law  as  applied  to  the  facts  without  discussing 
the  facts  in  detail,  and  without  commenting  on  them. 
But  so  jealous  have  legislatures  become  of  the  influence 
of  the  court  upon  the  jury  that  it  is  now  in  most  states 
made  an  error  of  law  for  the  court  to  express  his 
opinion  upon  the  facts,  although  he  leaves  the  ultimate 
decision  of  course  to  the  jury.  It  frequently  is  the 
case  that  under  the  statute  the  judge  is  required  to 
write  his  charge  and  discuss  the  abstract  principles  ap- 
plicable in  the  case,  and  that  then  the  counsel  are  per- 
mitted to  discuss  the  law  of  the  case  in  view  of  the 
judge's  charge  and  apply  the  facts.  The  opportunity 
which  this  gives  the  counsel  to  pervert  the  law,  and 
the  wide  scope  which  the  system  in  restricting  the  judge 
gives  to  the  jury  of  following  its  own  sweet  will,  of 
course  doubles  the  opportunity  for  miscarriages  of  jus- 
tice. The  function  of  the  judge  is  limited  to  that  of 
the  moderator  in  a  religious  assembly.  The  law  throws 
the  reins  on  the  back  of  the  jury,  and  the  verdict  be- 
comes rather  the  vote  of  a  town  meeting  than  the  sharp, 
clear  decision  of  the  tribunal  of  justice.  The  counsel 
for  the  defense,  relying  on  the  diminished  power  of  the 
court,  creates  by  dramatic  art  and  by  harping  on  the 
importance  of  unimportant  details,  a  false  atmosphere 
in  the  courtroom  which  the  judge  is  powerless  to  dispel, 
and  under  the  hypnotic  influence  of  which,  the  counsel 
is  able  to  lead  the  jurors  to  vote  as  jurors  for  a  verdict 
which,  after  all  the  excitement  of  the  trial  has  passed 
away,  they  are  unable  to  support  as  men. 

Another  cause  already  alluded  to  is  the  difficulty  of 
securing  jurors   properly   sensible   of  the  duty  which 


ADMINISTRATION  OF  CRIMINAL  LAW    351 

they  are  summoned  to  perform.  In  the  extreme  tender- 
ness the  state  legislatures  exhibit  toward  persons  ac- 
cused as  criminals  and  especially  as  murderers,  they 
allow  peremptory  challenges  to  the  defendant  far  in  ex- 
cess of  those  allowed  to  the  state.  In  my  own  state  of 
Ohio  for  a  long  time,  the  law  was  that  the  state  was 
allowed  two  peremptory  challenges  and  the  defendant 
twenty-three  in  capital  cases.  This  very  great  dis- 
crepancy between  the  two  sides  of  the  case  allowed  the 
defendant's  counsel  to  eliminate  from  all  panels  every 
man  of  force  and  character  and  standing  in  the  com- 
munity, and  to  assemble  a  collection  in  the  jury  box  of 
nondescripts  of  no  character,  weak  and  amenable  to 
every  breeze  of  emotion,  however  maudlin  or  irrelevant 
to  the  issue. 

I  do  not  think  that  the  members  of  the  Bar  can 
escape  the  responsibility  for  the  demoralizing  tendency 
of  the  legislatures  to  wrest  from  the  judges  in  the 
criminal  procedure  the  conserving  power  which  they 
ought  to  retain  and  which  they  had  at  common  law,  and 
to  exalt  the  jury's  power  beyond  anything  which  is 
wise  or  prudent,  and  to  extend  to  the  defendant  the 
opportunity  to  reject  all  good  men  from  the  jury  and 
to  select  the  weak,  the  unintelligent  and  the  irrespon- 
sible. The  perversions  of  justice  in  my  own  city  of 
Cincinnati  and  state  of  Ohio  in  1884  led  to  the  appoint- 
ment of  a  committee  of  the  Bar  to  visit  the  legislature 
to  see  whether  it  was  not  possible  to  rid  our  criminal 
code  of  procedure  of  those  features  which  placed  the 
prosecution  at  great  disadvantage  in  the  trial  of  capi- 
tal cases.  The  indignation  of  the  public  had  led  to  a 
mob  and  to  the  burning  of  our  courthouse,  and  it  was 
thought  that  the  time  had  come  for  some  more  active 
members  of  the  community  to  organize  and  see  if  reform 


352   ADMINISTRATION  OF  CRIMINAL  LAW 

could  not  be  effected.  I  had  the  honor  of  being  one  of 
those  who  waited  upon  the  judiciary  committee  of  the 
Ohio  legislature  and  preferred  the  request,  that  the 
twenty-three  challenges  allowed  to  the  defendant  be  re- 
duced to  twelve,  and  that  the  state  be  allowed  a  similar 
number;  but  we  found  that  there  were  upon  that  com- 
mittee lawyers  a  substantial  part  of  whose  practice 
consisted  in  acting  as  counsel  for  the  defendants  in  im- 
portant criminal  trials.  When  I  protested  that  twenty- 
three  challenges  was  an  outrageous  number,  the  chair- 
man of  the  committee  leaned  back  with  the  remark, 
"  Many  a  time  have  I  seen  when  I  would  have  given  all 
my  fee  to  have  had  twenty-four  challenges  for  the  de- 
fendant.'5 I  cite  this  instance  because  I  believe  that  the 
unjust  disposition  to  curtail  the  power  of  judges,  to 
exalt  the  power  of  the  jury,  to  subject  them  to  influ- 
ences that  ought  not  to  control  them,  and  to  give 
opportunity  to  the  defendant's  counsel  to  manipulate 
the  selection  of  juries  by  the  use  of  peremptory  chal- 
lenges, is  due  more  or  less  to  the  intervention  of  some 
members  of  the  bar  whose  practice  is  more  or  less  bene- 
ficially affected,  as  they  conceive,  by  these  obstacles  to 
the  course  of  justice. 

The  third  reason  for  the  distinction  between  the  en- 
forcement of  law  in  England  and  in  this  country  is  to 
be  found  in  the  right  of  appeal  which  is  given  in  every 
criminal  case,  and  in  many  cases  the  appeal  is  to  two 
courts.  The  code  of  evidence  with  its  complicated 
rules,  the  technical  statutory  limitations  supposed  to  be 
in  favor  of  the  defendant,  are  all  used  as  a  trap  to  catch 
the  trial  court  in  some  error,  however  technical,  upon 
which  in  appellate  proceedings  a  reversal  of  the  judg- 
ment of  the  court  below  may  be  asked.  The  rule  which 
obtains  throughout  this  country  is  that  any  error,  how- 


ADMINISTRATION  OF  CRIMINAL  LAW    353 

ever  small,  which  it  is  impossible  to  show  affirmatively 
did  not  prejudice  the  defendant,  must  lead  to  reversal 
of  the  judgment.  The  same  disposition  on  the  part 
of  the  courts  to  think  that  every  provision  of  every 
rule  of  law  in  favor  of  the  defendant  is  one  to  be  strictly 
enforced,  and  even  widened  in  its  effect  in  the  interest 
of  the  liberty  of  the  citizen,  has  led  courts  of  appeal  to  a 
degree  of  refinement  in  upholding  technicalities  in  favor 
of  defendants,  and  in  reversing  convictions,  that  renders 
one  who  has  had  practical  knowledge  of  the  trial  of 
criminal  cases  most  impatient. 

In  a  case  carried  on  error  to  the  Supreme  Court  of 
the  United  States,  the  point  was  raised  for  the  first  time 
in  the  Supreme  Court  that  the  record  did  not  show  an 
arraignment  of  the  defendant  and  a  plea  of  not 
guilty,  and  on  this  ground  the  court,  three  judges  dis- 
senting, reversed  the  case.  There  was  not  a  well- 
founded  doubt  in  that  case  that  the  defendant  was  ar- 
raigned and  pleaded  not  guilty.  The  perusal  of  the 
record  raised  this  as  a  presumption  of  fact  and  the 
judgment  was  reversed,  although  there  was  not  a  pre- 
tense that  the  defendant  had  suffered  any  injury  by 
reason  of  the  alleged  defect  of  the  character  in  question. 
When  a  court  of  highest  authority  in  this  country  thus 
interposes  a  bare  technicality  between  a  defendant  and 
his  just  conviction,  it  is  not  too  much  to  charge  some 
of  the  laxity  in  our  administration  of  the  criminal  law 
to  a  proneness  on  the  part  of  courts  of  last  resort  to 
find  error  and  to  reverse  judgments  of  conviction. 

And  now,  what  has  been  the  result  in  this  country? 
Criminal  statistics  are  exceedingly  difficult  to  obtain. 
The  number  of  homicides  one  can  note  from  the  daily 
newspapers,  the  number  of  lynchings  and  the  number 
of  executions,  but  the  number  of  indictments,  trials,  con- 


354   ADMINISTRATION  OF  CRIMINAL  LAW 

victions,  acquittals  or  mistrials  it  is  hard  to  find.  Since 
1885  in  the  United  States  there  have  been  131,951  mur- 
ders and  homicides,  and  there  have  been  2286  execu- 
tions. In  1885  the  number  of  murders  was  1808.  In 
1904  it  had  increased  to  8482.  The  number  of  execu- 
tions in  1885  was  108.  In  1904  it  was  116.  This 
startling  increase  in  the  number  of  murders  and  homi- 
cides as  compared  with  the  number  of  executions  tells 
the  story.  As  murder  is  on  the  increase,  so  are  all 
offenses  of  the  felony  class,  and  there  can  be  no  doubt 
that  they  will  continue  to  increase  unless  the  criminal 
laws  are  enforced  with  more  certainty,  more  uniformity, 
more  severity  than  they  now  are. 

Certainly  the  result  of  the  American  criminal  pro- 
cedure as  distinguished  from  the  English  criminal 
procedure  does  not  encourage  us  to  think  that  it  would 
be  wise  to  introduce  into  the  Philippine  Islands  a  system 
of  jury  trial  which  now  prevails  in  most  of  the  States, 
especially  under  the  restrictions  of  the  power  of  the 
court  which  we  find  as  we  go  west  in  this  country.  The 
cure  for  this  growing  cancer  in  the  body  politic  is  more 
practical  and  more  available  than  most  public  evils  be- 
cause it  may  be  found  in  statutory  amendments.  If 
laws  could  be  passed  either  abolishing  the  right  of  crimi- 
nal appeal  and  leaving  to  the  pardoning  power,  as  it  is 
in  England,  the  correction  of  judicial  wrong,  or  in- 
stead of  that,  if  appeals  must  be  allowed,  then  if  a  pro- 
vision of  law  could  be  enacted  by  which  no  judgment 
of  the  court  below  should  be  reversed  except  for  an  error 
which  the  court,  after  reading  the  entire  evidence,  can 
affirmatively  say  would  have  led  to  a  different  verdict, 
ninety-nine  reversals  out  of  one  hundred  under  the  pres- 
ent system  would  be  avoided. 

Second,  if  the  power  of  the  court  by  statute  to  ad- 


ADMINISTRATION  OF  CRIMINAL  LAW    355 

vise  the  jury,  to  comment  and  express  its  opinion  to  the 
jury  upon  facts  in  every  criminal  case,  could  be  restored, 
and  if  the  state  and  the  defendant  were  both  deprived 
of  peremptory  challenges  in  the  selection  of  a  jury,  25 
per  cent,  of  those  trials  which  are  now  miscarriages  of 
justice  would  result  in  the  conviction  of  the  guilty  de- 
fendant, and  that  which  has  become  a  mere  game  in 
which  the  defendant's  counsel  play  with  loaded  dice, 
would  resume  its  office  of  a  serious  judicial  investigation 
into  the  guilt  or  innocence  of  the  defendant.  I  pre- 
sume it  is  useless  to  expect  that  courts  will  turn  from 
their  present  tendency  to  amplify  technicalities  in  be- 
half of  defendants  until  legislatures  shall  initiate  the 
change  by  the  broad  limitation  already  suggested  upon 
the  power  of  the  court  to  reverse  the  judgment  of  the 
court  below.  Our  country  is  disgusted  by  the  number 
of  lynchings  that  occur  both  in  the  North  and  in  the 
South,  and  excuses  are  sought  for  the  horrid  and  fiend- 
ish cruelties  perpetrated  by  mobs  in  such  cases  in  some 
other  cause  than  the  delays  of  justice.  Instances  are  cited 
of  where  the  mob  has  executed  men  whom  they  had  every 
reason  to  believe  were  about  to  be  justly  punished  under 
the  law,  to  show  that  an  improvement  in  the  criminal 
procedure  would  not  prevent  lynchings.  But  every 
man  of  affairs  who  has  studied  the  subject  at  all  knows 
that  if  men  who  commit  crime  were  promptly  arrested 
and  convicted,  there  would  be  no  mob  for  the  purpose 
of  lynching.  A  mob,  after  it  has  organized,  loses  all 
conscience  and  can  not  be  controlled,  but  it  is  the  delays 
of  justice  that  lead  to  its  organization.  Nothing  but 
a  radical  improvement  in  our  administration  of  criminal 
law  will  prevent  the  growth  in  the  number  of  lynchings 
in  the  United  States  that  bring  the  blush  of  shame  to 
every  lover  of  his  country. 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 

Los  Angeles 
This  book  is  DUE  on  the  last  date  stamped  below. 


J&R 


1 2  2  m 


<%@f&\$>^ 


10 


RECO  LO-URt 
MAY131996 


A.! 


i£-g.iQUlll2lilgia 

Form  L-9-15m-2,'36 


P.M. 

4ISCS 


university  of  California 
at 

LOS  ANGELES 


3  1158  00787  8514 


